Delhi District Court
Cc No. 57/2019 Cbi vs . Om Prakash Chautala Page: 1/248 on 21 May, 2022
IN THE COURT OF VIKAS DHULL, SPECIAL JUDGE
(PC ACT) (CBI)-23 (MPs/MLAs Cases) ROUSE AVENUE
COURT COMPLEX, NEW DELHI
Case No.: CC No. 57/2019
CNR No. DLCT11-000283-2019
FIR NO. RC-02(A)/2006/ACU-VII
U/S. 13(1)(e) r/w 13(2) of PC Act, 1988
Branch: CBI,ACU-VII/New Delhi
In the matter of :
The Central Bureau of Investigation
C.G.O. Complex
Lodhi Road
New Delhi.
Versus
Sh.Om Prakash Chautala
S/o Late Chaudhary Devi Lal
R/o Teja Khera Farm, Village Teja Khera
Tehsil Dabwali, Distt.Sirsa
Haryana. ... Accused
Date of institution : 26.03.2010
Date on which judgment reserved : 23.04.2022
Date on which judgment pronounced : 21.05.2022
JUDGMENT
1. Accused Om Prakash Chautala has faced trial in the present case for having committed an offence of criminal misconduct as defined under section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the "PC Act") and punishable under section 13(2) of the PC Act.
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 1/248 CHARGESHEET
2. The brief facts which can be culled out from the charge sheet are that the Hon'ble Supreme Court of India in Writ Petition (Crl.) 93 of 2003 passed an order dated 25.11.2003 and entrusted investigation of JBT Teacher Recruitment Scam pertaining to the Government of Haryana to the CBI. Accordingly, CBI had registered case no. RC- 3(A)/04/ACU-IX/New Delhi on 24.05.2004 and during the course of investigation, searches were conducted at the house of one Sh.Karan Dalal, MLA, Haryana Assembly on 07.04.2005 and incriminating documents revealing information about the assets accumulated by accused and his family members titled as "Memorandum of charge sheet against Sh.O.P.Chautala, Chief Minister, Haryana" was recovered.
3. The said document was primarily signed by Sh. Shamsher Singh Surjewala, Bhupender Singh Hooda, Harpal Singh, Karan Singh Dalal and other members. The aforesaid document contained a list of 43 properties, both movable and immovable allegedly owned by accused and his family members, having value of Rs.1467 crores.
4. Thereafter, the said information was passed on to the Government of Haryana and after obtaining necessary approval, CBI had registered the present FIR No. RC 2(A)/2006 ACU-VII on 03.04.2006.
5. It was alleged in the FIR that accused Om Prakash Chautala, while functioning as Chief Minister of Haryana during the period from 24.07.1999 to 05.03.2005 in CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 2/248 collusion with his family members and others, accumulated assets, immovable and movable, disproportionate to his known lawful sources of income, in his name, in the names of his family members and others to the extent of Rs.1467 Crores. It was alleged that accused accummulated enormous wealth and invested the same throughout the country in the shape of thousands of acres of land, multi complexes, palatial residential houses, hotels, farm houses, business agencies, petrol pumps and other investments apart from investments in foreign countries. It was alleged that 43 immovable properties in all, apart from cash and jewellery were accumulated. Apart from 43 alleged properties listed in the FIR, additional properties were also suspected to be of accused family. Investigation with regard to additional properties was also conducted for ascertaining the link of accused family with the said properties.
6. During the course of investigation, searches were conducted at twenty four places and a large number of documents and articles were seized. The relevant witnesses were examined and their statements under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") were recorded.
7. The following facts emerged during the investigation of the present FIR, which are as follows:--
(i) That the check period for the investigation was taken from 24.05.1993 till 31.05.2006 as it was during this period that the accused while working as MLA, Haryana CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 3/248 Vidhan Sabha and while working as the Chief Minister of Haryana is alleged to have acquired huge assets, both immovable and movable, which were disproportionate to his known source of income.
(ii) During the course of investigation, it also came on record that previously FIR No. 34/1997 PS Sadar Dabwali, Sirsa, Haryana was also registered against the accused for the offence under Section 13(1)(d) and (e) of the PC Act on the basis of complaint of his brother, Sh.Partap Singh Chautala. However, the said FIR was cancelled and the cancellation report was accepted by Ld.Special Judge, Sirsa vide order dated 25.01.2000. However, since the assets alleged in the FIR No. 34/1997 PS Sadar Dabwali and the present FIR were not identical, therefore, the present investigation continued.
(iii) During the course of investigation, CBI had taken into account all the assets, which were in possession of the accused at the beginning of check period, after ascertaining their ownership from the revenue records, Municipal Corporations and other Government authorities and the same were mentioned in Statement "A" of the charge sheet.
(iv) The CBI had similarly mentioned the immovable assets in Statement "B" which were acquired by the accused during the check period and had taken into account the acquisition value where the property was acquired and had taken the construction value or renovation value, wherever the property was constructed/ CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 4/248 renovated. The CBI had also taken the help of valuation experts to arrive at the value of construction / cost of renovation.
(v) The CBI had mentioned the Movable Assets acquired during the check period in Statement "B", by identifying the multiple bank accounts of accused and his wife and the bank accounts were got scrutinized from the experts and the cash lying in the bank accounts, at the end of the check period, was taken into account.
(vi) Further, CBI had also taken into account the value of household articles found at the residence of accused during the course of search. The value of jewellary and other claims were taken into account on the basis of declaration / affidavit filed by accused before the Election Commission at the time of Haryana Vidhan Sabha Election in 2005.
(vii) The CBI had also taken into account the Mercedes Benz Car purchased during the course of check period in the name of wife of accused.
(viii) While calculating the known source of income of the accused in Statement "C" of the chargesheet during the check period, the CBI had taken into account the salary details of the accused obtained from Haryana Vidhan Sabha and the income as disclosed by accused and his wife before the Income Tax Authorities by filing the income tax returns from the financial year 1999-2000 till 2005-2006.
No income tax returns were filed by accused or his wife from the Financial Year 1992-1993 till 1998-1999. For calculating the known source of income, the CBI had also CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 5/248 taken into account the vehicle loan taken by wife of accused of Rs.15 Lacs from SBI Chautala, Mandi Dabwali, Sirsa. The CBI had taken into account all their known source of income i.e. salary, rent, bank interest, agricultrual income, business income as shown by accused and his wife in their respective income tax returns.
(ix) The CBI had calculated the expenditure incurred by accused and his wife in Statement "D" of the charge sheet. The CBI had taken into account the expenditure incurred by accused and his wife on medical treatment, house tax payments, payment made on account of telephone charges, electricity charges, license fee, payment on account of air tickets, bank charges, income tax paid, payment made towards insurance of car, repayment of car loan by wife of accused and non-verifiable expenditure, which was calculated on the basis of 1/3rd of net income of accused.
8. At this stage, it is relevant to mention here that for the sake of brevity, each and every entry with regard to nature of assets acquired by accused and his wife during the check period and the expenditure made by them is not being set out in detail herein and the same shall be discussed in the later part of the judgment.
9. After completion of the charge sheet, sanction to prosecute the accused was obtained from the Hon'ble Speaker, Haryana Vidhan Sabha and thereafter, the present charge sheet was filed. Based upon the investigation, it was concluded in the charge sheet that accused while being elected as MLA and Chief Minister of Haryana during the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 6/248 period from 24.05.1993 till 31.05.2006, had acquired assets, both immovable and movable, which were disproportionate to his known source of income. The disproportionate assets were calculated to be Rs.6,09,79,026/- (Rupees Six Crores Nine Lacs Seventy Nine Thousand and Twenty Six only) and the percentage of DA (Disproportionate Assets) was 189.11% of his known sources of income. Accordingly, CBI had charge sheeted the accused for the offence under Section 13(1)(e) read with 13(2) of the PC Act.
10.Apart from the charge sheet filed against accused O.P.Chautala, the CBI had filed two more charge sheets arising out of the present FIR, against the sons of accused i.e. Abhay Singh Chautala and Ajay Singh Chautala and others, which are being tried separately.
CHARGE
11.The Ld.Predecessor of this court had heard the arguments in detail on the point of charge and vide order dated 03.08.2011, it was held that prima facie offence under Section 13(1)(e) read with Section 13(2) of the PC Act was made out against the accused. Accordingly, a formal charge was framed on 03.08.2011 to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
12.The prosecution in order to prove its case, had examined 106 witnesses.
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13.The witnesses examined by the prosecution to substantiate their case can be broadly categorized in six categories.
14.The first category of witnesses examined by the prosecution had deposed regarding the assets, which were owned by accused and his wife at the beginning of the check period. These witnesses had deposed that how the assets were acquired by the accused i.e. by way of purchase or by way of inheritance. These witnesses had also produced the relevant revenue record / record regarding the allotment. These witnesses had deposed regarding the ownership of agriculture land at village Shamshabad, Tehsil, Sirsa, agricultural land at village Teja Khera, Tehsil, Dabwali, Sirsa in the name of accused and that of his wife, regarding allotment of plot no.6, Block-D, Sector-8, Rohini by DDA and purchase of land at E-Block, Asola Farm, New Delhi through the registered sale deed. The witnesses examined in this regard and their deposition in brief has been tabulated as below:
PW Name Deposition in brief PW78 Sh.Tej Bhan Patwari of village Shamshabad, Tehsil Sirsa.
PW78 had deposed regarding the land purchased by accused at village Shamshabad in the year 1958 through sale deed.
PW40 Sh.Madan Lal Patwari, Village Teja Khera, Tehsil Dabwali, Sirsa. PW40 produced the revenue record of village Teja Khera and deposed regarding ownership of accused of agricultural land at village Teja Khera by way of inheritance.
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 8/248 PW4 Sh.Jagdish Prashad PW4 was employed as Assistant in DDA and he had produced the file D-15 before the CBI Official during the investigation.
PW44 Ms.Usha Deputy Director, Lease Administration Branch, DDA, Rohini, Delhi. PW44 deposed regarding forwarding of File D-15 (regarding Plot No.6, Pocket-11, Sector-8, Rohini) to the CBI Officer through her forwarding letter.
PW5 and Sh.Rajesh Khurana PW47 was the owner of land PW47 and Sh.Ashwani falling in Khasra No. 1369 Khurana and 1370, village Asola, New Delhi and PW5 was the attorney holder of PW47.
PW5 had deposed regarding selling of aforementioned land to accused in the year 1988.
PW11 Sh.Iqbal Singh Patwari of village Asola produced revenue record of Khasra Nos.1369 and 1370, village Asola, New Delhi regarding the ownership of accused of said land.
PW23 Sh.Manoj Sagar LDC from the Office of Sub-
Registrar -III, New Delhi.
PW23 produced certified copy of Sale Deeds bearing Registration No. 8679 and 8678 with regard to sale of Asola Farm House by PW5 in favour of accused.
15.Second category of witnesses examined by the prosecution had deposed regarding the immovable assets, which were acquired/purchased by the accused during the check period, the properties which were constructed / renovated during the check period, the valuation carried out CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 9/248 regarding the cost of construction / cost of renovation and about the sketch plan prepared regarding the renovation to be done. The witnesses examined in this regard and their deposition in brief has been tabulated as below:
PW Name Deposition in brief PW9 Sh.T.Rajan Addl.G.M. of M/s.Ansal Properties and Infrastructure Ltd. PW9 deposed with regard to allotment of Flat No. B-601, Gauri Sadan, Hailey Road, New Delhi and the payment rcceived from the accused during the check period.
PW48 Sh.B.S.Sandhu Valuation officer-2, Income Tax Department, Delhi. PW48 had given his valuation report with regard to Flat No.B-601, Gauri Sadan, New Delhi.
PW7 Prit Pal Singh Official from Haryana Urban Development Authority. He deposed regarding the Conveyance Deed in respect of Plot No.6-P in Sector-4, Mansa Devi Complex, Panchkula executed between HUDA and accused.
PW58 Sh.Narpat Singh Deputy Superintendent with HUDA (Estate Officer). He proved his letter dated 13.07.2006 vide which record (D-13) pertaining to Plot No.6- P, Sector-4, Mansa Devi Complex, Panchkula was forwarded to CBI.
PW24 Ms.Monika Estate Officer HUDA, who on Malik request of CBI, had sent file with regard to Plot No.6-P in Sector-4, Mansa Devi Complex, Panchkula to CBI.
PW59 Sh.Mahavir Witness from HUDA, who had Kaushik produced the details of payment made by accused.
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 10/248 PW20 Sh.S,K.Rampal Valuation Officer, Income Tax Department at the relevant time and he had given the valuation report with regard to farm house at village Lambi, Sirsa and Teja Khera, Sirsa.
PW46 Sh.Subhash Patwari, Village Lambi, Sirsa.
Chander PW46 had produced the revenue record of village Lambi vide D-27.
PW79 Sh.Ranjeet Singh Brother of accused and he deposed regarding construction of Teja Khera Farm house and partition of ancestral land between the four brothers and Teja Khera farm house coming to the share of accused in 1974.
PW50 Sh.A.K.Sharma District Valuation Officer, Income Tax Department, Chandigarh. He proved his letter dated 21.05.2008 vide which valuation reports were sent.
PW95 Sh.Dalip Singh Officer from Dakshin Haryana Bijli Vitran Nigam, He had produced the details of energy bill amount, with regard to electricity connection installed at Teja Khera farm house.
PW56 Sh.R.K.Verma Executive Engineer, DHBVN, Sirsa. PW56 had deposed that bills were duly raised in the name of the consumer in respect of electricity consumed with regard to Chautala Farm House, village Tejakhera, Sirsa.
PW26 Ms.Preeti Anand Architects, who were working and Chaudhary and under the name and style of PW54 Sh.Dalmeet M/s.T.F.Architects Pvt.Ltd. and Singh had provided the sketches with regard to renovation of Teja Khera farm house.
PW14 Sh.Vikas Director of M/s.Bhayana
Bhayana Builders Pvt.Ltd., deposed
regarding construction of Asola
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Farm House and receipt of
payment.
PW32 Sh.S.K.Gupta Project Manager of
M/s.Bhayana Builders Pvt.Ltd.
PW18 Sh.Surender District Valuation Officer,
Mohan Verma Income Tax Department, New
Delhi. PW18 had carried out
the valuation of Asola Farm
House.
PW15 Sh.Vidya Sagar Deputy Manager, State Bank of
Patiala, Defence Colony
Branch, New Delhi where
accused was having an
account. He provided the
details of cheques issued to
M/s.Bhayana Builders
Pvt.Ltd.from the said account
of accused.
PW64 Sh.R.P.Singhla Deputy General Manager,
Hayana State Co-operative
Apex Bank, Chandigarh,
provided the details of cheque
issued from the account of
accused favouring
M/s.Bhayana Builders Pvt.Ltd.
PW62 Sh.Gopi Chand President, Haryana Jan
Gahlot Pratinidhi Co-operative Group
Housing Society Ltd. He
deposed regarding the
allotment of pent house to
accused bearing no. P-1 in
Haryana Jan Pratinidhi Co-
operative Group Housing
Society, Gurugram.
PW66 Sh.Sham Sunder Branch Manager of SBI, Chauhan Village Chautala, District Sirsa, Haryana provided the details of payment from the account of accused in favour of Haryana Jan Pratinidhi Co-operative Group Housing Society.
PW35 Sh.Arunanshu Asstt.Valuation Officer-1, Malik Income Tax Department and he deposed regarding carrying out of valuation of Plot No.6, CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 12/248 Block-D, Sector-8, Rohini, Delhi and about his valuation report.
16.The third category of witnesses examined by the prosecution pertained to the movable assets i.e. cash, jewellery, household items, Mercedes Benz car, claims/interest etc. acquired by accused during the check period. The witnesses examined in this regard and their deposition in brief has been tabulated as below:
PW Name Deposition in brief
PW3 Munish Kumar Asstt.District
Attorney, Sirsa,
Haryana, who
provided the
Nomination Form
alongwith affidavit
filed by accused for
election to Haryana
Vidhan Sabha from
Rori Constituency,
2005 giving details
about his assets.
PW17 Sh.B.K.Narang and Bank Officials, who
and Sh.Rakesh Kesar had scrutinized the
PW90 multiple bank
accounts of accused
and his wife and had
given their scrutiny
report regarding the
cash amount lying in
their bank accounts.
PW99, Sh.Kanwar Singh, Bank Officials from
PW100, Sh.Ved Prakash, different banks, who
PW103, Sh.Satish Kumar, had deposed about the
PW105 Sh.Avdhesh Thakur and Statement of Account
and Sh.Narain Singh. of accused with
PW106 requisite certificates.
PW69 Sh.B.R.Silla Manager, SBI,
Chautala Village,
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Distt.Sirsa deposed
about the the letters
vide which he had
handed over the
Statement of Account
pertaining to account
of accused and his
wife to CBI
alongwith requisite
certificates.
PW49 Sh.Siddharth Tiwari Manager in Haryana
State Co-operative
Apex Bank Ltd., who
had deposed about his
letter vide which he
had handed over the
Statement of account
pertaining to account
of accused to CBI.
PW16 Sh.Ramesh Chander Chief Manager,
Oriental Bank of
Commerce, Sirsa,
who vide his letter,
produced the details
of Term Deposit No.
7420 in the name of
Sneh Lata and in the
name of accused.
PW102 Sh.Surender Singh Official from the
OBC, Sirsa. He
produced the
certificate under the
Bankers' Book of
Evidence Act, 1891
and under Section
65B of the Indian
Evidence Act, 1872
and also produced the
duly certified copies
of FDRs No.7420 and
7422.
PW60, Sh.Rajesh Kumar, These witnesses
PW72 Sh.Virender Pal Singh deposed about the
and Mann and Sh.Jagroop search proceedings
PW85 S.Gusinha and the articles found
at Teja Khera Farm
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House.
PW63 Sh.Yogesh Mehto Sub-Divisional
Officer, Faridabad,
Haryana and he
deposed regarding the
ownership of
Mercedez Benz Car
bearing No. HR-22D-
4977.
PW66 Sh.Sham Sunder Branch Manager, SBI
Chauhan at Village Chautala,
Distt.Sirsa provided
the details regarding
the car loan in the
name of Sneh Lata,
wife of accused and
issuance of draft with
regard to purchase of
car.
17.The fourth category of witnesses examined by the prosecution were those, who had deposed regarding the income of accused and his wife during the check period. In this regard, witness from Haryana Vidhan Sabha were examined, who had provided the salary details of accused, and witnesses from the income tax department, who had provided the income tax returns filed by accused and his wife during the check period. Apart from this, bank witnesses were also examined, who had deposed regarding taking of vehicle loan by wife of accused of Rs.15 Lacs. The witnesses examined in this regard and their deposition in brief has been tabulated as below:
PW Name Deposition in brief PW33 Sh.Sanjeev Assistant Commissioner of Income Minocha Tax, Central Circle-2, Chandigarh, who had deposed regarding handing CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 15/248 over of income tax returns of Smt.Sneh Lata and accused.
PW10 Ms.Inoshi Dy.Commissioner, Income Tax, Central Circle-II, Chandigarh.
PW10 deposed regarding her letter dated 22.10.2008 vide which certain income tax returns were handed over to CBI.
PW101 Sh.C.P.Sharma Inspector, Income Tax, ACIT Center, Circle-II, Chandigarh.
PW101 produced the original ITRs of accused for the assessment years 2001-2002 to 2005-2006.
PW66 Sham Sunder PW66 was the Branch Manager, Chauhan SBI, Chautala. PW66 deposed regarding vehicle loan of Rs.15 Lacs sanctioned in favour of Smt.Sneh Lata.
PW31 Sh.Banwari Lal Resident Assistant cum Care Taker in Haryana Vidhan Sabha. PW31 deposed about salary and allowances paid to the accused.
PW86 Sh.Rahul Bishnoi Chartered Accountant of accused.
PW86 deposed regarding handing over of documents regarding property and income of accused and his wife during investigation.
18.The fifth category of witnesses examined by the prosecution were those witnesses, who had deposed regarding the expenditure incurred by accused and his wife during the check period. These witnesses had deposed regarding the expenditure of accused on medical expenses, interest payment, house tax payment, telephone and electricity bills payment, licence fee payment, payment on account of purchase of air tickets, bank charges, income tax paid, payment on account of membership of India Habitat Centre etc. Further, with regard to wife of accused, CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 16/248 witnesses had deposed regarding her expenditure on payment of insurance, income tax payment, repayment of car loan, salary payment, payment made to various travel agents on account of purchase of air tickets. The witnesses examined in this regard and their deposition in brief has been tabulated as below:
PW Name Deposition in brief
PW13 Sh.Sukhbir SDO, DHBVN,
Kamboi Dabwali, Haryana.
PW13 had deposed
regarding handing over
of some documents
regarding electricity
connection to CBI.
PW19 Sh.S.K.Malhotra Senior Assistant, House
-Tax Department,
NDMC, New Delhi He
produced the document
showing payment of
amount by accused
towards the house tax.
PW 21 Sh.Purshottam Lal Retired S.P.,CBI. He
had deposed regarding
forwarding of property
tax file in respect of
Flat No.601-B, Gauri
Sadan, 5, Hailey Road,
New Delhi vide his
letter dated 07.06.2008.
PW22 Sh.Prabhakaran Controller of Accounts,
Indian Habitat Centre.
He had deposed
regarding membership
of accused with Indian
Habitat Centre and
payment received
regarding membership
fees.
PW25 and PW27 Sh.Gajender Singh PW25 was a witness
and Dr.S.C.Gupta from Pay & Accounts
Office, Ministry of
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Health and PW27 was
working as Senior
Medical Record Officer
at Sir Ganga Ram
Hospital, Rajinder
Nagar, New Delhi. Both
these witnesses deposed
about the medical
expenditure incurred by
accused for his medical
treatment at Sir Ganga
Ram Hospital, New
Delhi.
PW29, PW39 and Sh.Ramesh Pingal, PW29 was posted as
PW68 Sh.K.P.Kalia and JTO (Recovery), Office
Sh.Mahesh Chand of GMTD, Hisar, PW39
Rana. Sh.K.P.Kalia was the
Accounts Officer of
BSNL, Hisar and PW68
was the Accounts
Officer in TRUCC,
BSNL, Sirsa. All have
deposed regarding
payment of two
telephone bills installed
at residence of accused
in Sirsa and at Teja
Khera farm house.
PW30 Sh.Raman Narula Director of M/s.Narula
Travels Pvt.Ltd. He had
deposed regarding
details of payment
received from Smt.Sneh
Lata, wife of accused
with regard to purchase
of air tickets.
PW37 Sh.S.N.Gupta Accounts Officer
(Billing) in Office of
Director, Commercial,
NDMC. PW37
produced the record of
electricity charges paid
in respect of Flat No.B-
601, Gauri Sadan, New
Delhi.
PW36 Sh.Sanjay Gupta Assistant Director, Rent
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Parliament Section,
Directorate of Estates,
Parliament House
Annexe, New Delhi. He
deposed with regard to
payment of license fee
by accused.
PW38 Sh.Vinod Kumar Senior Tax Assistant in
the Office of Deputy
Commissioner of
Income-Tax, Central
Circle-II, Chandigarh.
PW38 had deposed with
regard to income tax
returns of accused.
PW42 Sh.James Joseph Manager with J & S
Travels Pvt.Ltd., PW42
deposed regarding
handing over of
documents (part of D-
78) to CBI.
PW43 Sh.P.K.Sen PW43 deposed
regarding details of
payment made towards
house tax by accused.
PW52 Sh.H.R.Kamboj Senior Divisional
Manager, Divisional
Office, United India
Insurance Company
Limited, Hisar. He
deposed regarding
receipt of payment in
respect of insurance.
PW56 Sh.R.K.Verma Executive Engineer,
Dakshin Haryana Bijli
Vitran Nigam, Dabwali.
PW56 deposed
regarding details of
electricity consumption.
PW95 Sh.Dalip Singh AGM, Chautala Sub
Division, Dakshin
Haryana Bijli Vitran
Nigam. He deposed
about the details of
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energy bill amount paid
by accused.
PW98 Ms.Manjari Gauba Manager, Finance and
Administration of
Lufthansa Airlines.
PW98 deposed
regarding purchase of
air ticket of Lufthansa
Airlines by paying the
amount in cash by
accused and his wife.
PW66 and PW106 Sh.Sham Sunder PW 66 and PW106
Chauhan and were the Branch
Sh.Narain Singh Managers, SBI,
Chautala and both have
deposed regarding the
bank charges debited in
the Statement of
account of accused.
19.The sixth category of witnesses are those witnesses, who had deposed regarding the grant of sanction by the Government of Haryana to inquire into the allegations against the accused and the witness, who had deposed regarding the recovery of documents from his residence containing details of properties belonging to accused and his family members. The witnesses examined in this regard and their deposition in brief has been tabulated as below:
PW Name Remarks
PW1 Sh.Ram Niwas Assistant, Haryana Civil
Secretariat, Chandigarh
and he deposed regarding
the sanction
communicated by the
Government of Haryana
to CBI for conducting an
inquiry to the allegations
against the accused.
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PW2 Sh.Karan Singh Dalal He deposed about the
search by CBI at his
premises at Palwal and
Chandigarh and about the
seizing of Memorandum
of Chargesheet
containing the details of
properties of accused and
his family members.
20.Apart from the abovementioned witnesses, the CBI had also examined IO Sh.Jagroop S.Gusinha, DSP as PW85 and he had deposed regarding the investigation conducted by him with regard to the assets acquired by accused during the check period, income and expenditure of accused and his wife and how the disproportionate assets were calculated.
21.The deposition of aforementioned witnesses are not being narrated herein in detail for the sake of brevity and relevant portions thereof and the documentary evidence produced by them, have been referred to wherever necessary in the later part of the judgment.
ADMITTED DOCUMENTS
22.During the course of trial, the accused had admitted the following documents of the prosecution under Section 294 Cr.P.C.:
Lease Agreement dated 01.02.1998 Ex.ADP-1 between accused and Association of Basic Telecom Operators First amendment to the aforementioned Ex.ADP-2 Lease Agreement dated 24.09.1999 Lease Agreement dated 27.03.2001 Ex.ADP-3 between accused and Association of Basic CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 21/248 Telecom Operators Lease agreement dated 14.02.2004 Ex.ADP-4 between accused and Association of Basic Telecom Operators Details of the rent paid to accused by Ex.ADP-5 Association of Basic Telecom Operators Letter dated 19.07.2006 of Secretary, Ex.ADP-6 Association of Basic Telecom Operators Letter No. 27/2/78-PD of CBI, Ministry of Ex.ADP-7 Home Affairs regarding procedure to be followed in investigation of cases of disproportionate assets.
Letter No. 27/8/85-PD of CBI regarding Ex.ADP-8 taking of check period in cases of disproportionate assets Draft Report Ex.ADP-9 Letter dated 07.03.2001 of the Secretary, Ex.ADP-10 Central Vigilance Committee Letter dated 29.11.2001 of CBI regarding Ex.ADP-11 standardizing the procedure of investigation into the assessment of wealth of public servants EXAMINATION OF ACCUSED UNDER SECTION 313 CR.P.C.
23.After the conclusion of the prosecution evidence, all the incriminating evidence coming on record was put to accused while being examined under Section 313 Cr.P.C. In response to the same, accused had stated that PW2 Karan Singh Dalal, happens to be the relative of Sh.Bhupinder Singh Hooda, the then Chief Minister of Haryana and the present case has been lodged due to political rivalry and to tarnish his image.
24.It was submitted by accused that excessive and non- existent expenditure has been shown by the CBI, his real CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 22/248 income has been concealed and a false case of disproportionate assets has been made against him by the CBI.
25.It was further submitted by accused that his complete income has not been brought on record by the CBI. It was further submitted by accused that calculation of disproportionate assets is wrong and he is a victim of political vendetta.
26.Lastly, accused had submitted that his assets were proportionate to his income and the CBI had conducted a biased investigation. Accused also offered to lead defence evidence.
DEFENCE EVIDENCE
27.In his defence evidence, accused had examined 22 witnesses.
28.DW1 ASI Inderjeet was the PSO of accused and DW5 Sh.Subhash Chander was the relative of accused and both have deposed that the medical expenditure of accused pertaining to Sir Ganga Ram Hospital was paid by DW5 Sh.Subhash Chander.
29.DW2 Sh.D.R.Verma, XEN, Dakshin Haryana Bijli Vitran Nigam (DHBVN) had deposed regarding the installation of electricity connection at Teja Khera Farm house on 07.11.1983.
30.DW3 Sh.Kanwar Singh Mor was the Accountant of The Haryana State Cooperative Apex Bank Ltd., Chandigarh, Haryana and had produced the certified Bank Statement of National Lok Dal.
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31.DW4 Sh.Bhopal Singh was the care taker at Teja Khera Farm House, and he had deposed regarding the income of accused from fruit orchard, agriculture produce and regarding the search carried out at Teja Khera farm house.
32.DW6 Sh.Ramesh Chand was the care taker of Asola Farm house and he had deposed that the said farm house was constructed by Ch.Devi Lal in the year 1990.
33.DW7 Sh.Kuldeep Singh was the relative of accused and he had deposed that he used to stay at the house of accused in Rohini, which was constructed in the year 1990.
34.DW8 Sh.Madan Mohan and DW9 Sh.Pradeep Kumar, both were the residents of village Chautala, District Sirsa, Haryana and had deposed regarding existence of orchard in the land of accused at village Chautala on 7 acres of land and remaining land was under cultivation and also about the income of accused from the orchard.
35.DW10 Sh.Abhivek Godara was a witness to the search conducted by the CBI at house No.100, Lodhi Estate, New Delhi.
36.DW11 Sh.Dharamvir had deposed that he was associated with Ch.Devi Lal, father of accused since 1977 and in the year 1990, he was made office secretary of Janta Dal for Haryana State. He further deposed regarding the political meetings being held at Teja Khera farm house, Lambi house and Asola farm house.
37.DW12 Sh.Shiv Prakash and DW13 Sh.Himanshu Sharma, revenue officials had produced the revenue record regarding the land owned by accused at village Teja Khera.
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38.PW14 Sh.Nachattar Singh had deposed that after his retirement from Haryana State Agricultural Marketing Board in 2003, he had joined the Indian National Lok Dal, the political party of the accused, and his job was to make arrangments for the meetings of accused at various places like Tejakhera farm house, Lambi farm house and at other places in District Sirsa. He also deposed regarding the gifts which were received by accused and about the dairy business of accused at Teja Khera farm house.
39.DW15 Sh.Vijay Kumar was the Deputy Record Keeper of Sessions Court, Sirsa, Haryana and he had brought the original judicial file pertaining to bail application of accused filed in FIR No. 34/1997 PS Sadar Dabwali decided by the court of Sh.K.K.Chopra, the then ASJ, Sirsa.
40.DW16 ASI Ranjit Singh had deposed regarding handing over of police file of case FIR No. 34/1997 PS Sadar Dabwali to this court.
41.DW17 HC Mohan Lal from PS Sadar Dabwali, District Sirsa, Haryana had brought the FIR No. 34/1997 PS Sadar Dabwali, District Sirsa, Haryana.
42.DW18 Sh.Balbir Singh, was the SHO of PS Sadar Dabwali and he deposed regarding handing over of police file relating to FIR No. 34/1997 PS Sadar Dabwali to IO Sh.Jagroop Gusinha.
43.DW19 Sh.Ranjit Singh was the Incharge Malkhana and had deposed regarding the documents deposited in the form of files, cashbook, ledgers etc. CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 25/248
44.DW20 Sh.Shyam Lal was partly examined in chief and thereafter, at the request of Ld.Defence counsel, the said witness was dropped
45.DW21 Sh.Dilawar Singh, was working as an Accountant in the Kisan Trading Company, and had deposed about the partners of said firm and about the nature of business being carried out by the said firm. He also identified the various cashbooks, which were seized by the CBI from M/s.Kiran Trading Company.
46.DW22 Sh.Ram Kishore, was working with Haryana police as DSP in the year 1997, and he was the IO of FIR No. 34/1997 PS Sadar Dabwali and after his investigation, he had filed the cancellation report, which he had proved on record. No other witness was examined by the Ld.Defence counsel. Accordingly, the matter was posted for final arguments.
FINAL ARGUMENTS
47.I have heard Sh.Ajay Gupta, Ld.SPP for CBI and Sh.Harsh K.Sharma, Ld.counsel for accused and have also carefully perused the evidence led on record as well as the documents relied upon by the witnesses in their evidence. I have also carefully perused the judgments relied upon by respective parties.
48.Ld.counsel for accused had submitted, during the course of final arguments that in the present case, there are various issues of law, on the basis of which accused deserves to be acquitted. It was further submitted that accused also CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 26/248 deserves to be acquitted on the merits as CBI has failed to prove that accused was having any disproportionate assets to his income.
49.I shall first deal with the various legal issues highlighted by Ld.Defence counsel during the course of final arguments as these legal issues have a bearing on the outcome of the present case.
LEGAL SUBMISSIONS (A) Charge sheet filed in this case violative of Section 17 of PC Act.
50.The Ld.Defence counsel has challenged the legality of the charge sheet filed in this case firstly, on the ground of it being violative of Section 17 of PC Act as IO PW85 Sh.Jagroop S.Gusinha was not authorized to investigate the offence as per Section 17 of the PC Act.
51.Secondly, on the ground that charge sheet has been filed by the IO PW85 Sh.Jagroop S.Gusinha with regard to a different check period from what was alleged in the FIR, without seeking prior authorization of the Superintendent of Police.
52. It was submitted by Ld.Defence counsel that in the present case, FIR No. RC 02(A)/2006-ACU-VII dated 03.04.2006 Ex.PW85/2 (D-1) was registered by the CBI under Section 13(1)(e) of the PC Act wherein check period was taken as 24.07.1999 till 05.03.2005. However, the charge sheet, which was filed, in the present case pertains to a different CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 27/248 check period i.e. 24.05.1993 till 31.05.2006. It was submitted by Ld.Defence counsel that Superintendent of Police, CBI had authorized the IO i.e. PW85 Sh.Jagroop S.Gusinha to investigate the offence under Section 13(1)
(e) of the PC Act with reference to check period of 24.07.1999 till 05.03.2005 and since the IO had investigated the offence with regard to a different check period i.e. from 24.05.1993 till 31.05.2006, without any authorization from concerned Superintendent of Police, therefore, charge sheet was filed in violation of Section 17 of the PC Act and accused deserves to be acquitted on this ground. It was further submitted that any investigation conducted without any authorization from the concerned Superintendent of Police is no investigation in the eyes of law and hence, accused deserves to be acquitted. In support of his submission, he has relied upon the following judgments: - (1) H.N.Risbudh Vs. Delhi Admn; 1955 SCR 1151; (2) State of Haryana & Ors. Vs. Ch.Bhajan Lal; AIR 1990 SC 604; and (3) H.S.Gotla Vs. State; ILR 2001 Kar 2843.
53.On the other hand, it was submitted by Ld.SPP for CBI that in the present case, IO PW85 Sh.Jagroop S.Gusinha was holding a rank of Deputy Superintendent of Police and as per Section 17 of the PC Act, he was authorized by the Superintendent of Police i.e. Sh.K.C.Joshi to investigate the FIR Ex.PW85/2 (D-1). It was further submitted that said authorization is in writing as made out from the endorsement made in the FIR Ex.PW85/2 (D-1). It was CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 28/248 further submitted that it has also come in the cross examination of IO PW85 Sh.Jagroop S.Gusinha dated 15.11.2016, that he was authorized by Sh.K.C.Joshi, the then Superintendent of Police, CBI to conduct the investigation of the present FIR Ex.PW85/2 (D-1) and the said deposition is duly corroborated by FIR Ex.PW85/2 (D-1) whereby Sh.K.C.Joshi, Superintendent of Police, CBI had entrusted the investigation of the present FIR Ex.PW85/2 (D-1) to Sh.Jagroop S.Gusinha, Deputy Superintendent of Police and signatures of Sh.K.C.Joshi are appearing at point "X" and "X1" of Ex.PW85/2 (Colly) (D-1). Therefore, IO PW85 Sh.Jagroop S.Gusinha was duly authorized under Section 17 of the PC Act to investigate the present offence.
54.It was further submitted that since IO PW85 Sh.Jagroop S.Gusinha was duly authorized by the Superintendent of Police, CBI to investigate the offence under Section 13(1)
(e) of the PC Act, therefore, he was competent to decide about the check period based upon the material collected by him during the course of investigation.
55.It was further submitted that there is no law that IO is bound to limit his investigation to the allegations made in the FIR and he cannot take a different view if the material collected during the course of investigation disclose commission of a different offence or commission of the offence under Section 13(1)(e) of the PC Act for a different check period.
56.It was submitted that it is the discretion of the IO to decide CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 29/248 as to what is the check period during which there has been maximum accumulation of assets, which were disproportionate to the known sources of income. It was further submitted that in the present case, IO PW85 Sh.Jagroop S.Gusinha, after investigation, based upon the material collected during the course of investigation, had decided that the check period should be from 24.05.1993 till 31.05.2006 and in the charge sheet, the IO has given detailed reason as to why the above-mentioned check period was taken by him in the present case.
57.It was further submitted that no prior authorization was required from the Superintendent of Police, CBI, for the purpose of arriving at a different check period from what was mentioned in the FIR, once the FIR was entrusted to the IO PW85 Sh.Jagroop S.Gusinha by the Superintendent of Police, CBI. Since the entrustment of the investigation to the IO PW85 Sh.Jagroop S.Gusinha was legal and as per Section 17 of the PC Act, therefore, the discretion exercised by the IO for taking a different check period, cannot be said to be in violation of Section 17 of the PC Act.
58.It was further submitted that the various judgments relied upon by the Ld.Defence counsel, are not applicable to the facts of the present case as in the aforementioned judgments, the appointment of the IO was in violation of Section 17 of the PC Act and, therefore, it was held that investigation is faulty. However, in the present case, the investigation conducted by the IO is as per mandate of CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 30/248 Section 17 of the PC Act and hence, the judgments relied upon by the Ld.Defence counsel are not applicable. Accordingly, it was prayed that said legal objection of Ld.Defence counsel be rejected.
FINDING
59.In order to appreciate the legal issue raised by Ld.Defence counsel, I have carefully perused the FIR Ex.PW85/2 (D-
1) as well as the charge sheet filed in this case.
60.As per second proviso to Section 17 of the PC Act, an offence under Section 13(1)(e) of the PC Act shall not be investigated without the order of a police officer not below the rank of Superintendent of Police.
61.In the present case, the second proviso to Section 17 of the PC Act has been duly complied with as Superintendent of Police, CBI Sh.K.C.Joshi (as he was then) had made an order on 03.04.2006, which is part of the FIR Ex.PW85/2 (D-1) authorizing Sh.Jagroop S.Gusinha, Deputy Superintendent of Police, to conduct the investigation of the present case and this fact has also been deposed to by IO PW85 Sh.Jagroop S.Gusinha in his cross examination recorded on 15.11.2016, which was never disputed by the Ld.defence counsel. Therefore, it was proved on record that PW85 Sh.Jagroop S.Gusinha was duly authorized by a written order of Superintendent of Police Sh.K.C.Joshi to conduct the present investigation.
62.The judgments relied upon by Ld.Defence counsel delivered in H.N.Risbudh' case ( supra) is not applicable CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 31/248 to the facts of the present case as in the said case, investigation was marked to inspector of police and permission was obtained from the concerned Magistrate after the major part of investigation was done by the said inspector of police. It was held by the Hon'ble Supreme Court of India that since investigation was done by an officer below the rank of Deputy Superintendent of Police, therefore, taking of prior permission of the concerned Magistrate was mandatory as per Section 17 of the PC Act and since the same was only taken after the investigation was completed, therefore, it was held that investigation is faulty and in violation of Section 17 of the PC Act. However, the said judgment is not applicable to the facts of the present case as in the present case, IO PW85 Sh.Jagroop S.Gusinha, holding the rank of Deputy Superintendent of Police was duly authorized by Sh.K.C.Joshi, Superintendent of Police, CBI to conduct the present investigation after the registration of FIR, in terms of second proviso to Section 17 of the PC Act.
63.The second judgment relied upon by Ld.Defence counsel delivered in State of Haryana Vs. Ch.Bhajan Lal's case (supra) is also not applicable, as in the said case, Superintendent of Police had authorized the inspector of Haryana police to investigate the offence under Section 13(1)(e) of the PC Act without assigning any reason as to why a junior officer is being authorized to investigate the offence. However, in the present case, no junior officer has been authorized to investigate and the investigation has CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 32/248 been conducted by IO PW85 Sh.Jagroop S.Gusinha, who was the Deputy Superintendent of Police and was authorized as per Section 17 of the PC Act to carry out the investigation.
64.The last judgment relied upon by Ld.Defence counsel was of Karnataka High Court delivered in H.S.Gotla's case (supra). The said judgment is also not applicable as in the said case, Deputy Superintendent of Police, who was looking after the work of Superintendent of Police, had assigned the FIR to himself and the Hon'ble Karnataka High Court had held such assignment to be violative of Section 17 of PC Act as Deputy Superintendent of Police was not promoted to the cadre of Superintendent of Police and, therefore, it was held that the investigation conducted was in violation of second proviso to Section 17 of the PC Act and hence, was quashed. However, in the present case, Sh.K.C.Joshi was the Superintendent of Police, CBI and he was fully competent to authorize IO PW85 Sh.Jagroop S.Gusinha in terms of second proviso to Section 17 of the PC Act to conduct the investigation of this case. Therefore, this judgment is also of no help to the case of accused. Therefore, the first limb of legal objection raised by Ld.Defence counsel is not tenable and is accordingly, rejected.
65.The other limb of legal issue raised by Ld.Defence counsel that IO cannot take a different check period also deserves to be rejected.
66.In the opinion of this court, once the IO was duly entrusted CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 33/248 with the investigation under Section 17 of the PC Act, then it was the discretion of the IO to take a check period during which the accused had accumulated maximum number of assets which were disproportionate to his known source of income. The IO could have exercised such discretion based upon the material collected during the investigation. At the stage of FIR, whatever allegations are made are prima facie in nature and they are required to be established by way of collecting material during the course of investigation and if during investigation, material collected by the IO shows that disproportionate assets have been accumulated during a different check period than what was alleged in the FIR, then IO can definitely mention different check period in the chargesheet and there is no illegality in the same. In the present case, IO in para 16.4 of the charge sheet has explained as to why he has taken the check period from 24.05.1993 till 31.05.2006. As per explanation of the IO, it was during this period that the maximum accumulation of assets has been done by the accused, which were disproportionate to his known source of income.
67.The powers of the IO to file a charge sheet for a different offence can be explained by the following example:-
"If in a case, IO is entrusted with the investigation with regard to kidnapping of a child and if during the course of investigation, it comes to the knowledge of the IO that the kidnapped child has been murdered, then there is no requirement of the law that IO is required to again take authorization from the Superintendent of Police/SHO to continue with the investigation with regard to the murder of the child if CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 34/248 he was otherwise competent to investigate the offence of murder. The IO can very well continue with the investigation and file the charge sheet for the murder of the child although FIR was registered only for the kidnapping of the child.
68.In the present case also, if IO, based upon the material collected during the course of investigation, has come to a conclusion in the charge sheet that maximum number of assets were acquired by the accused during the check period from 24.05.1993 till 31.05.2006, which is different from the check period mentioned in the FIR, then in the opinion of this court, there is no violation of Section 17 of the PC Act committed by the IO if no authorization from the Superintendent of Police was taken for mentioning a different check period in the chargesheet. The reason for the same is that there is no mandate in Section 17 of PC Act requiring IO to take prior permission of the Superintendent of Police, for adding any offence in the charge sheet which was absent in the FIR or for taking a different check period than what was mentioned in the FIR.
69.From the aforementioned discussion, it can be safely said that the charge sheet filed in the present case was not in violation of any provision of PC Act and accused cannot be acquitted on this legal issue.
(B) Error in framing of Charge dated 03.08.2011
70.The Ld.Defence Counsel had challenged the legality of charge framed on 03.08.2011 on the ground that the said CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 35/248 charge is vague and ambiguous due to which grave prejudice has been caused to the accused, in his defence. It was submitted that the charge dated 03.08.2011 is not specific regarding the quantum of disproportionate assets acquired during the check period, which were beyond the known source of income of the accused. Therefore, during entire trial, accused had no knowledge as to what was the quantum of disproportionate assets alleged to have been acquired by him during the course of check period and consequently, had no knowledge as to what he had to satisfactorily account for in the present case. Therefore, failure of justice has occurred as accused could not properly defend the case of the prosecution in the present case and charge framed was violative of Section 211 and 212 of the Cr.P.C. It was further submitted that the entire trial is a nullity as it was not a fair trial and, therefore, accused deserves to be acquitted. In support of his submission, he has relied upon the following judgments of the Hon'ble Supreme Court of Inda delivered in :( 1) Vasant Rao Guhe Vs. State of M.P.; (2017) 14 SCC 442; and (2) V.C.Shukla Vs. CBI; 1980 Supp.SCC 92.
71.On the other hand, it was submitted by Ld.SPP for CBI that although it is true that in the charge dated 03.08.2011, it is not specifically stated that as to what was the quantum of disproportionate assets acquired by accused during the course of check period but still such omission in the framing of charge has not occurred any failure of justice or has caused any prejudice to the defence of accused as CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 36/248 accused had the knowledge about the exact quantum of disproportionate assets, which he had to satisfactorily account for in this case. It was submitted that accused was supplied with the copy of charge sheet wherein quantum of disproportionate assets was specifically mentioned. It was further submitted that Ld.Predecessor of this court, had passed a detailed order on charge dated 03.08.2011 after hearing the Ld.counsel for accused and the Ld.SPP for CBI and in the order on charge dated 03.08.2011, the exact amount of disproportionate assets is duly mentioned in paras 13 and 40 and based upon the order on charge dated 03.08.2011, the formal charge was framed on 03.08.2011.
72.It was further submitted that formal charge framed on 03.08.2011 cannot be read in isolation and the same has to be read in conjunction with the order on charge dated 03.08.2011. Since the order on charge dated 03.08.2011 clearly specifies the amount of disproportionate assets i.e. Rs.6,09,79,026/-, which the accused could not satisfactorily account for, therefore, no failure of justice has occurred and trial did not stand vitiated. Accordingly, a prayer was made to reject this contention.
FINDING
73.I have considered the rival submissions of respective counsels and have carefully perused the record i.e. the order on charge dated 03.08.2011 and the formal charge framed on 03.08.2011.
74.In order to appreciate the contention of Ld.Defence Counsel, charge framed on 03.08.2011 is reproduced CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 37/248 hereinbelow:--
"That you accused Om Prakash Chautala, being MLA during the period 24.05.1993 to 31.05.2006 were found in possession of assets disproportionate to known sources of your income and for which you could not satisfactorily account for and thereby you committed an offence under Section 13(1)(e) of P.C.Act, punishable under Section 13(2) of P.C.Act and within my cognizance.
And I direct that you be tried by this court for the abovesaid offence."
75.From the aforementioned reproduction of charge, it is apparent that the check period has been specifically mentioned in the charge dated 03.08.2011. However, it is true that the exact quantum of disproportionate assets do not find any mention in the charge dated 03.08.2011.
76.Now, the next question arises is whether the omission to mention the quantum of disproportionate assets in the charge dated 03.08.2011 will vitiate the trial or not?
77.The answer to this question lies in Section 215 and 464 of the Cr.P.C. which are reproduced hereinbelow:--
" 215. Effect of errors.--No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
464. Effect of omission to frame, or absence of, or error in, charge.
(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 38/248 the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."
78.On conjoint reading of Section 215 Cr.P.C. and Section 464 Cr.P.C., it is apparent that any omission or irregularity in the framing of charge is not considered as material unless it resulted in failure of justice to the accused. I am fortified in my reasoning by the judgment of the Hon'ble Supreme Court of India delivered in Anna Reddy Sambasiva Reddy & Ors. Vs. State of Andhra Pradesh; 2009 (12) SCC 546 wherein the Hon'ble Supreme Court of India, after relying upon the Constitutional Bench judgment of the Hon'ble Supreme Court of India delivered in Willie (William) Slaney Vs. The State of Madhya Pradesh; AIR 1956 SC 116, had held in para 42 as under:-
The aforesaid legal position holds good after enactment of the Code of Criminal Procedure, 1973 as well in the light of Sections 215, 216, 218, 221 and 464 contained therein. In unmistakable terms, Section CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 39/248 464 specifies that a finding or sentence of a court shall not be set aside merely on the ground that a charge was not framed or that charge was defective unless it has occasioned in prejudice. Because of a mere defect in language or in the narration or in form of the charge, the conviction would not be rendered bad if accused has not been adversely affected thereby. If the ingredients of the section are obvious or implicit, conviction in regard thereto can be sustained irrespective of the fact that the said section has not been mentioned. A fair trial to the accused is a sine quo non in our criminal justice system but at the same time procedural law contained in the Code of Criminal Procedure is designed to further the ends of justice and not to frustrate them by introduction of hyper-
technicalities. Every case must depend on its own merits and no straightjacket formula can be applied; the essential and important aspect to be kept in mind is: has omission to frame a specific charge resulted in prejudice to the accused.
79.In the present case, mere omission in mentioning the quantum of disproportionate assets in the charge, has not resulted in any failure of justice as accused was very much aware about the quantum of disproportionate assets as he was supplied with the copy of charge sheet. In the charge sheet, the quantum of disproportionate assets has been specifically stated in para 16.10.13 at page 37.
80.Secondly, accused had led arguments at the stage of charge through his counsel and the order on charge dated 03.08.2011 specifically records in para 13, the quantum of disproportionate assets, acquired by accused and on the same day i.e. on 03.08.2011, a formal charge was framed. The formal charge dated 03.08.2011 was framed on the basis of order on charge dated 03.08.2011 and, therefore, the formal charge dated 03.08.2011 has to be read in CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 40/248 conjunction with the order on charge dated 03.08.2011. Therefore, accused had the knowledge regarding the exact quantum of disproportionate assets acquired by him during the check period, which he was required to account for.
81.Thirdly, accused had engaged a lawyer, who had represented him right from his first appearance in the court till the stage of final arguments and, therefore, it cannot be believed that the lawyer of accused had not informed him regarding the quantum of disproportionate assets, which were required to be specifically accounted for.
82.Lastly, assuming that from the charge dated 03.08.2011, accused had no clue as to what was the quantum of disproportionate assets which he was required to specifically account for, then accused through his counsel could have moved an application for amendment/modification of charge under Section 216 Cr.P.C. In the present case, accused had indeed filed an application under Section 216 Cr.P.C. on 21.03.2018 but in the said application, amendment/modification of charge was sought on the ground that accused was not the MLA for the entire check period i.e. from 24.05.1993 till 31.05.2006 as per the evidence of PW31 Sh.Banwari Lal. However, the said application was dismissed vide order dated 13.04.2018. No other application was filed under Section 216 Cr.P.C. by accused seeking amendment of charge due to omission of mentioning of quantum of disproportionate assets. Therefore, the above facts demonstrate that accused had the knowledge about the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 41/248 quantum of disproportionate assets, which he was required to satisfactorily account for and that is why no application under Section 216 Cr.P.C. was filed seeking amendment of the charge to specify the exact quantum of disproportionate assets.
83.The judgment relied upon by Ld.Defence counsel delivered by the Hon'ble Supreme Court of India in the matter of Vasant Rao Guhe's case (supra) is not applicable to the facts of the present case as before the Hon'ble Supreme Court of India, there was no issue of effect of omission to mention the quantum of disproportionate assets in the charge. Therefore, the said judgment is of no help to the legal objection raised by the Ld.defence counsel.
84.The other judgment relied upon by the Ld.defence counsel delivered by the Hon'ble Supreme Court of India in the matter of V.C.Shukla's case (supra) is also not applicable to the facts of the present case. The reason for the same is that the issue before the Hon'ble Supreme Court of India was whether an appeal was maintainable under Section 11(1) of the Special Courts Act, 1979 against the order on charge passed by the Ld.Trial Court. The Hon'ble Supreme Court of India held that no appeal lies under Section 11(1) of the Special Courts Act, 1979 against the order on charge as it was an interlocutory order.
85.All the abovementioned facts show that no failure of justice had occurred in the present case due to omission to mention quantum of disproportionate assets in the charge CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 42/248 dated 03.08.2011. Accordingly, this legal contention of Ld.Defence counsel is rejected.
(C) Sanction
86. Ld.Defence counsel had challenged the legality of taking cognizance by the Ld.Predecessor of this court vide order dated 20.04.2010 on the ground of there being no valid sanction under Section 19 of the PC Act, as amended in 2018.
87.It was submitted by Ld.Defence counsel that subsequent to the amendment of PC Act, 1988 in 2018, now in every case regarding a public servant (serving or retired), prior sanction under Section 19 of the PC Act is mandatory for the purpose of taking the cognizance. It was further submitted that said amendment to PC Act in 2018 is retrospective in operation. It was further submitted that since in the present case, accused was a public servant, therefore, prior sanction was required from the concerned Government for the purpose of taking cognizance. However, since in the present case, the cognizance was taken on 20.04.2010 without there being any valid sanction, therefore, accused deserves to be acquitted for want of sanction. In support of his submission, Ld.Defence counsel has relied upon the following judgments: -- (1) Gottumukkala Venkata Krisham Raju Vs. UOI; (2018) SCC OnLine (SC) 1386; (2) Basheer @ N.P.Basheer Vs. State of Kerala; (2004) 3 SCC 609; (3) General Finance Co. Vs. C.I.T. (2002) 7 SCC 1; (4) CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 43/248 Kolhapur Cance Sugar Works Ltd. Vs. U.O.I; (2002) 2 SCC 536; (5) T.Barai Vs. Henry AH Hoe and Anr.; (1983) 1 SCC 177;(6) Boucher Pierre Andre Vs. Supdt.Central Jail; AIR 1975 SC 164; (7) Rayala Corp. (P) Ltd. Vs. Directorate of Enforcment. New Delhi; (1969) 2 SCC 412; and (8) Rattan Lal @ Ram Rattan Vs. State of Punjab (1964) 7 SCR 676.
88.On the other hand, it was submitted by Ld.SPP for CBI that issue of sanction has already been decided by the Ld.Predecessor of this court vide order dated 20.04.2010 and also vide order on charge dated 03.08.2011. It was further submitted that no sanction was required in the present case as accused had ceased to hold office, which he had abused, on the date of taking cognizance and Ld.Predecessor of this court had rightly held so by relying upon the judgment of the Hon'ble Supreme Court of India delivered in Parkash Singh Badal and Anr. Vs. State of Punjab and Ors.; AIR 2007 SC 1274 and 2007 (1) SCC
1. It was further submitted that in the present case, cognizance of the offence was taken way back on 20.04.2010 and the law prevailing on the date of taking cognizance is required to be applied. It was further submitted that amendment of PC Act in 2018 requiring sanction to be taken in every case of public servant (serving or retired) is to be applied post amendment and not to those cases which were registered prior to the amendment and where even cognizance was taken prior to the amendment. In support of his submission, Ld.SPP for CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 44/248 CBI has relied upon the judgment of the Hon'ble Supreme Court of India delivered in The State of Telangana Vs. Sri Managipet @ Mangipet Sarveshwar Reddy; Criminal Appeal No. 1662 of 2019 decided on 06.12.2019.
FINDING
89. I have heard the rival submissions of respective counsels and have perused the record and the judgments relied upon by Ld.respective counsels.
90.There can be no dispute with the law cited by Ld.Defence counsel that court cannot take cognizance of an offence under the PC Act without there being a valid sanction. However, in case, valid sanction is not required, then order of taking cognizance is not bad in law.
91.In the present case, prior to taking cognizance, the sanction against the accused from the Speaker, Haryana Assembly was obtained as mentioned in para 16.10.19 of the chargesheet and filed on record vide order dated 19.04.2010. Further, vide order dated 20.04.2010, the issue of sanction was decided by the Ld.Predecessor of this court by holding that although sanction for prosecution of accused had been obtained by the CBI but no prior sanction was required in the present case as accused had ceased to hold office, which he had abused on the date of taking the cognizance by relying upon the judgment of the Hon'ble Supreme Court of India delivered in Parkash Singh Badal's case (supra). This argument of prior sanction was again raised by Ld.Defence counsel, at the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 45/248 stage of charge and said contention of Ld.Defence counsel was again rejected vide detailed order on charge dated 03.08.2011. Therefore, on the date of taking cognizance, the prevailing law did not mandate taking of prior sanction for the purpose of taking cognizance. Even otherwise, the sanction for prosecution of accused from the Speaker, Haryana Assembly had been obtained by the CBI and filed on record vide order dated 19.04.2010, prior to taking cognizance.
92.The contention of Ld.defence counsel to apply Section 19 of PC Act, which was amended in 2018, retrospectively deserves to be rejected. The reason for the same is that the law prevailing at the time of commission of offence is required to be applied for trial of such offence. In the present case, accused had committed the offence under the PC Act, 1988 between the period from 1993 till 2006. Therefore, provisions of PC Act, 1988 would be applicable to the accused and not the amended PC Act, 1988 which was amended w.e.f. 26.07.2018. I am fortified in my reasoning by the judgment of the Hon'ble Supreme Court of India delivered in The State of Telangana's case (supra), which has been relied upon by Ld.SPP for CBI, wherein in para 37, it was held as follows:--
"37. Mr. Guru Krishna Kumar further refers to a Single Bench judgment of the Madras High Court in M. Soundararajan v. State through the Deputy Superintendant of Police, Vigilance and Anti Corruption, Ramanathapuram20 to contend that amended provisions of the Act as amended by Act XVI of 2018 would be applicable as the Amending Act came into force before filing of the charge CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 46/248 sheet. We do not find any merit in the said argument. In the afore- said case, the learned trial court applied amended provisions in the Act which came into force on 26th July, 2018 and acquitted both the accused from charge under Section 13(1)
(d) read with 13(2) of the Act. The High Court found that the order of the trial court to apply the amended provisions of the Act was not justified and remanded the matter back observing that the offences were committed prior to the amendments being carried out. In the present case, the FIR was registered on 9th November, 2011 much before the Act was amended in the year 2018. Whether any offence has been committed or not has to be examined in the light of the provisions of the statute as it existed prior to the amendment carried out on 26 th July, 2018."
93.In the light of law laid down by the Hon'ble Supreme Court of India as aforementioned, the order of taking cognizance dated 20.04.2010 without any valid sanction as per amended Section 19 of the PC Act, is not bad in law. Accordingly, this objection of Ld.Defence counsel is rejected.
Submissions on merits
94.In the present case, CBI has filed the charge sheet, which has been divided into four parts i.e. Statement "A", "B", "C" and "D".
95.The arguments led by the parties with regard to each statement and the evidence, which has come on record, with regard to each statement, will be dealt with by this court separately.
Statement " A"
96.Statement "A" which is mentioned in para 16.10.1 of the charge sheet deals with the assets of accused at the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 47/248 beginning of the check period. The assets owned by the accused at the beginning of the check period were as follows: -
S.No. Name & Category Sale Deed Sale Deed/ Sale deed Name of Address of No. Mutation amount Regd.Owner Property date as (including applicable stamp duty etc. Rs.) 1 2 3 4 5 6 7 Land at Village Land Ownership 1970 as 1,400 as Sh.Om 1 Shamshabad, as per stated stated by Prakash Tehsil Sirsa, jama Sh.O.P.Cha Chautala Khewat / bandi utala Khatauni No. since 1981 257/357, Khasra No. 5/27/2 having ownership measuring 9 Kanal 6 Marla 2 Agricultural Land Inherited 09.02.1970 Acquisition Smt.Kesar Land at Village from 11.04.1974 Value for Devi W/o Teja Khera, Ch.Devi Shri Sh.Om Tehsil Dabwali Lal O.P.Chautal Prakash
(a) Khasra No. a=0 Chautala 104/1, 2,3,4,5, 6/1, 7/1, 8/1, 9/1, 10/1, 11,12,13, 14,15,16,17, 18, 19, 20, 21, 22, 23, 24 (b) 92/93, 24, 25,
(c) 105/3, 4,5, 6/1, 15, 16, 25
(d) 109/5, 6, 15
(e) 103/2, 9/1, 10/1, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 23, 24(d) 93/11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25(e) 94/21(f) 110/1, 2, 3, 7, 8, 9, 10, 11, 12, CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 48/248 13, 14 having ownership of area 198 Kanal 15 Marla 3 Agricultural Land Inherited 09.02.1970 0 Smt.Kesar Land at Village from 11.04.1974 Devi W/o Shri Teja Khera, Ch.Devi Om Prakash Tehsil Dabwali, Lal Chautala @
(a) Khasra No. Smt.Sneh Lata 104/1, 2, 3, 4, 5, 6/1, 7/1, 8/1, 9/1, 10/1, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, (b) 92/23, 24, 25, (c) 105/3, 4, 5, 6/1,15, 16, 25 (d) 109/5, 6, 15
(e)103/2, 9/1, 10/1, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 23, 24(d) 93/11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25(e) 94/21(f) 110/1, 2, 3, 7, 8, 9, 10, 11, 12, 13, 14 having ownership of area 107 Kanal 19 Marla
4. Plot No. 6, Plot Allotted 07.09.1982 18,611 Sh.Om Pocket No. 11, by DDA Prakash Block-D, Chautala Sector-8, Rohini, having land area 92 sq. mtr. (92.25 Sq.m) 5 Land at E-Block, Land Sale deed 02.11.1988 2,90,000 Sh.Om Asola Farm, No.8679 Prakash New Delhi, and 8678 Chautala Khasra No. 1369 and 1370 having ownership of area 13 Bigha 19 Bishwa. (i.e. 2.905 areas) CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 49/248 A Total Value 3,10,011 (Family) Submissions of Ld.Defence Counsel and Ld.SPP for CBI
97.It was submitted by Ld.Defence counsel that apart from the assets mentioned in Statement "A" of the charge sheet, the income of accused, at the beginning of the check pe- riod and during the check period from agriculture pro- duce, dairy and bank deposits have not been brought on record by the CBI despite accused providing the informa- tion regarding the source of income to the CBI. Accord- ingly, it was submitted that income from agriculture, dairy business and bank deposits existing at the beginning of the check period be also taken into account while calculating the disproportionate assets of accused.
98.On the other hand, Ld.SPP for CBI submitted that all the known sources of income of accused have been taken into account and whatever sources of income were in the knowledge of accused, were required to be satisfactorily accounted for by accused as per Section 106 of the Indian Evidence Act, 1872. It was further submitted that no source of income has come to the knowledge of CBI, which was existing at the beginning of the check period from agriculture, dairy or from bank deposits. It was fur- ther submitted that onus was upon the accused to have sat- isfactorily accounted for the disproportionate assets by showing his lawful source of income. Since accused has CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 50/248 failed to do so, therefore, this contention deserves to be re- jected.
99.The contention of Ld.Defence counsel as to whether in-
come from agriculture, dairy or bank deposits existing at the beginning of the check period and during the check pe- riod has been taken into account by the CBI or not, will be dealt with in Statement "C" wherein income of accused has been discussed and the same is not being discussed herein for the sake of brevity.
STATEMENT "B"
IMMOVABLE ASSETS ACQUIRED BY ACCUSED DURING CHECK PERIOD I.E. 24.05.1993 TO 31.05.2006.
100. As per the charge sheet, the details of immovable assets acquired by accused during the check period is given under the heading of Statement "B" in para 16.10.4.
101. As per Statement "B" regarding the immovable properties, accused had acquired in all, eleven properties during the check period. It is the admitted case of the CBI that below mentioned three properties were either inherited by the wife of accused or by accused or obtained due to exchange of land, during the check period and hence, the acquisition value is taken to be NIL. These properties are as follows: -
Sl.No. Name & Category Sale Deed No. Sale Deed / Sale deed Name of Regd.Owner Address of Mutation amount Property date as (including applicable stamp duty etc.) CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 51/248
3. Land at Land Inherited from 1997 Acquisitio Smt.Sneh Lata @ Village Ch.Devi Lal n Value=0 Kesar Devi Chautala, Tehsil Dabwali, Khasra No.127/11/1 , 20/2 (b) 128/15, 16/1
(c) 1091/1,
(d) 44/1, 9, 10, 11, 20
(e) 45/5, 6, 15, 16, 24, 25 (f) 73/4/2, 5, 6, 7, 8, 9, 10(g) 149/5, 6 having ownership of area 69 Kanal 11 Marla
7. Land at Nai Land Mutation No. 18.04.2002 0 Sh.Om Prakash Mandi, 21064 Chautala Dabwali on (Tabadla) Khasra No. 21064, area 750 yds.
8. Land at 0 Inherited from 12.02.2002 Acquisitio Sh.Om Prakash Village Land Ch.Devi Lal n Value=0 Chautala Chautala, Mutation no.
Tehsil 7360
Dabwali
Khasra No.
127/11/1,
20/2(b)
128/15,
16/1(c)
1091/1, (d)
44/1, 9,
10,11, 2(e)
45/5, 6, 15,
16, 24, 25
(f) 73/4/2, 5,
6, 7, 8, 9,
10(g) 149/5,
6(h) 77/21
(i) 78/16,
17, 18, 25,
7, 8, 13, 14,
15(j) 112/6,
15, 16/1,
16/2, 25(k)
113/10(i)
120/5, 6/1
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102. Therefore, vide this judgment, a finding has to be returned as to whether the acquisition cost / construction cost, mentioned in the charge sheet, with regard to remaining eight properties, has been proved by the CBI or not? The remaining eight immovable properties, which are being dealt with are as follows:--
Sl.No. Name & Category Sale Deed Sale Deed / Sale deed Name of Regd.Owner Address of No. Mutation date amount Property as applicable (including stamp duty etc.)
1. Flat at B- Flat Buyers 21.08.1996 17,22,961/- Sh.Om Prakash 601, Gauri agreement Chautala Sadan, 5, with Hailey M/s.Ansal Road, New Properties Delhi [41,02,961/-
having area (minus
of 2107 23,80,000/-
Sq.ft. paid upto
1992)=17,22,
961/-]
2. Plot No.6-P Open Deed No. 07.11.2005 5,23,494 Om Prakash Chautala
in Sector-4, Residenti 2018 (Payment made in
Mansa Devi al Plot (48,4191+ 1991-92 Rs.1,70,299/-
Complex at 38,800 stamp and from 1993-97
Panchkula duty +500 RF Rs.5,74,780/-)
having area + 3 =
846 sq.mtr. 5,23,494)
4. Land at Land in Exchanged NA 70,52,200 Smt.Sneh Lata @
Village exchange with Abhay Kesar Devi
Lambi, Building Singh with
Tehsil Construct land at Teja
Dabwali, ed (cost Khera
Khasra of (Valuation
No.78/8 constructi Report dated
having on) 18.11.2008)
ownership
of area 4
Kanal
5. Cattle Shed Shed Constructed Since 1960 Value taken Smt.Sneh Lata @
at village onwards alongwith Kesar Devi w/o
Teja Khera, Farm Sh.Om Prakash
Tehsil House Chautala
Dabwali, Building as
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 53/248
Distt.Sirsa, per
Khasra valuation
No.102/10/1 report
6. Residential Residenti Constructed Since 1960 1,99,86,300 Sh.Om Prakash
House at al House Common onwards Chautala
Village Teja Valuation Renovataed (50%
Khera Tehsil Report dated in 2001-2002 share)
Mandi 26.09.2008
Dabwali, for
Distt.Sirsa, Rs.3,99,72,60
Survey 0/-
No.103/2
jointly
owned with
Sh.Abhay
Singh (son)
50% share
9. Farm House Farm Sale deed 2004 1,35,05,000 Sh.Om Prakash
at E-Block, House no.8679 and Chautala
Asola Farm, (Cost of 8678
New Delhi, constructi dt.2.11.88
Khasra on) Construction
No.1369 cost has
and 1370 revealed from
having bank records
ownership (construction
of area 13 value as per
Bigha 19 valuation
Bishwa (i.e. report dated
2.905 acres) 10.08.2009)
10. Flat No. P- Pent Letter of 21.06.07 50,00,000 Sh.Om Prakash
1, The House President of Chautala
Haryana, the Jan
Jan Pratinidhi
Pratinidhi CGHS
Co- Gurgaon
operative
Group
Housing
Society,
Sector-28,
Gurgaon
11. Plot No.6, Residenti Constructed 2004-2005 11,95,600 Sh.Om Prakash
Pocket al (Value as per Chautala
No.11, building valuation
Block-D, (Cost of report
Sector-8, Construct dt.04.03.2008
Rohini, ion) )
having land
area 92
sq.mtr.
(92.25
Sq.m)
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 54/248
103. Prior to giving a finding on each of the eight properties regarding their acquisition/cost of construction, it is pertinent to deal herewith the common arguments of the Ld.Defence counsel, with regard to Assets No.4,5,6 and 9 referred to hereinabove.
104. It was submitted by Ld.Defence counsel that facts regarding the previous FIR No. 34/1997 PS Sadar Dabwali were duly mentioned by the IO in the present charge sheet (para 16.5) but previous FIR No.34/1997 PS Sadar Dabwali was distinguished on the ground that the set of assets, alleged in both the FIRs, are not identical.
105. It was submitted that said statement is a false one as aforementioned properties are also involved in FIR No.34/1997 PS Sadar Dabwali.
106. It was the contention of Ld.counsel for accused that the property nos. 4,5,6 and 9 of Statement "B" of the present chargesheet were also investigated in FIR No.34/1997 PS Sadar Dabwali by Haryana Police and after investigation, a case under Section 13(d) & (e) of the PC Act, 1988 was cancelled.
107. It was further submitted that during the course of investigation of FIR No.34/1997 PS Sadar Dabwali, it had come on record that properties no.4,5,6 and 9 were constructed prior to the check period of the present case.
Therefore, properties no.4,5,6 and 9 of the charge sheet could have been constructed/renovated during the check period and the construction cost of aforementioned four properties is required to be taken as NIL.
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108. On the other hand, it was submitted by Ld.SPP for CBI that allegations with regard to properties no.4,5,6 and 9 were quite different in the previous FIR No.34/1997 PS Sadar Dabwali and there was no allegation made in the previous FIR No.34/1997 PS Sadar Dabwali with regard to construction of farm house / carrying out of renovation in the aforementioned four properties. Therefore, the fact of cancellation of previous FIR No.34/1997 PS Sadar Dabwali has got no bearing on the four properties in the present case. It was further submitted that even the check period in the previous FIR No.34/1997 PS Sadar Dabwali was quite different from the check period of the present case. In the previous FIR No.34/1997 PS Sadar Dabwali, check period was from 1977 to 1979 and from 1987-1991 whereas in the present FIR, the check period is from 1993 till 2006. Accordingly, a prayer was made to reject the contention of Ld.Defence counsel.
FINDING
109. I have considered the rival submissions of respective counsels and have carefully perused the record of this case including the record of previous FIR No.34/1997 PS Sadar Dabwali.
110. In the present case, the judicial file of FIR No.34/1997 has been destroyed as mentioned in para 16.5 of the charge sheet and only police file was collected from PS Sadar Dabwali which was exhibited in the evidence of IO PW85 Sh.Jagroop S. Gusinha as PW85/DA-3.
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111. In the police file, there is an affidavit of complainant Partap Singh dated 11.01.1997 in which the complainant Partap Singh has alleged regarding the various properties owned and possessed by accused which were disproportionate to his known sources of income. In para 4 of the affidavit, the period during which the properties were acquired is mentioned as 1977 to 1979 and 1987 to 1991.
112. Further, in the said affidavit, allegations were levelled with regard to lot of properties but the properties which are common to the previous FIR No.34/1997 PS Sadar Dabwali and the present charge sheet are properties no.4,5,6 and 9 of the present charge sheet.
113. In the cancellation report Ex.DW22/A pertaining to FIR No.34/1997 PS Sadar Dabwali, it has been stated by the Haryana Police regarding land at village Lambi, Tehsil Dabwali (Asset No.4 of the present charge sheet) that allegations of complainant Partap Singh were found to be false as the said land is not owned by the accused.
114. In the present FIR, it is not the case of the CBI that land at village Lambi is owned by accused. On the contrary, it is the case of CBI that land having Khasra No. 78/8 having area of 4 Kanal, village Lambi, Sirsa is owned by wife of accused i.e. Smt.Sneh Lata. Only allegation made by CBI in the present case is that a building was constructed on land at village Lambi in Khasra No. 78/8 wherein amount of Rs.70,52,200/- was spent on its construction during the check period.
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115. In the earlier FIR No.34/1997 PS Sadar Dabwali, no fact of cost of construction was investigated with regard to land falling in Khasra No. 78/8 village Lambi, Tehsil Dabwali, which was owned by wife of accused.
116. Secondly, with regard to farm house at village Tejakhera, District Sirsa (Assets No.5 and 6 of the charge sheet), it was alleged in the FIR No.34/1997 PS Sadar Dabwali that farm house is constructed on one acre of land and is double storeyed air-conditioned farm house. This allegation was found to be false and it is observed in the cancellation report Ex.DW22/A that farm house exists on one acre land but it is built on part of one acre and is not fully air conditioned.
117. In the present case, the allegation was not with regard to existence of farm house on the entire one acre land or it being fully air conditioned but the allegation pertained to carrying out of renovation in the year 2001- 2002 in the said farm house resulting in an expenditure of around Rs.1,99,86,300/-.
118. Further, with regard to property no. 9 i.e. Farm House at Asola Farms, New Delhi, the cancellation report Ex.DW22/A only mentions about the date of purchase of the said land and the price at which it was purchased and there is no mention about the farm house constructed there on and the period of construction of farm house or the expenditure incurred on constructing the farm house.
119. In the present case, the allegation do not pertain to purchase of land at Asola, New Delhi but it pertains to CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 58/248 building of farm house in the year 2004 at the cost of Rs.1,35,05,000/-. Therefore, from the aforesaid discussion, it is clear that previous cancellation report Ex.DW22/A of FIR No.34/1997 PS Sadar Dabwali investigated the properties of accused, for a different check period i.e. from 1987-1991 whereas in the present case, check period is from 1993 to 2006.
120. Secondly, the allegations with regard to properties no. 4,5,6 and 9 in the previous FIR No.34/1997 PS Sadar Dabwali were different to what was alleged in the present case.
121. In the previous FIR No.34/1997 PS Sadar Dabwali, there were no allegations with regard to construction of farm house / renovation of farm house in properties no.4,5,6 and 9 of the present charge sheet. Therefore, on the basis of cancellation report Ex.DW22/A pertaining to FIR No.34/1997 PS Sadar Dabwali, the contention of Ld.Defence counsel deserves to be rejected as neither there was allegation made by the complainant Sh.Partap Singh regarding construction of farm house / renovation of farm house nor it was established in the cancellation report Ex.DW22/A that any evidence of construction of farm house / renovation of farm house in properties no.4,5,6 and 9 was found in existence prior to the check period. Therefore, the cost of construction / renovation work cannot be taken as NIL with regard to properties no.4,5,6, and 9 of the present charge sheet, based upon the cancellation report Ex.DW22/A pertaining to FIR CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 59/248 No.34/1997 PS Sadar Dabwali.
122. Now, I shall deal with each of the eight properties to return a finding as to whether the acquisition cost / construction cost / renovation cost has been proved by the CBI or not?
Asset No.1 - Flat No. B-601, Gauri Sadan, 5, Hailey Road, New Delhi having an area of 2107 sq.ft.
123. As per the charge sheet, accused had purchased the aforementioned flat in the year 1991 from M/s.Ansal Properties and Infrastructure Ltd. at the cost of Rs.41.02 Lacs. Out of the said amount, Rs.23,80,000/- was paid upto 1992 and remaining amount of Rs.17,22,961/- was paid during the check period.
Submissions of Ld.Defence Counsel and Ld.SPP for CBI
124. It was submitted by the Ld.counsel for accused that the aforementioned property was allotted to accused on 19.08.1990 vide allotment letter Ex.PW9/C (Part of D-14) and as per the evidence which has come on record of PW9 Sh.T.Rajan and PW85 IO i.e. Jagroop S.Gusinha, accused had made payment of Rs.17,22,961/- during the check period, in addition to Rs.2,00,000/- made towards the car parking. Therefore, the evidence which has been led on record by the prosecution shows the payment of Rs.19,22,961/-having been made during the check period. However, the said amount arrived at by the IO PW85 CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 60/248 Jagroop S.Gusinha is incorrect one. It was submitted in this regard that PW9 Sh.T.Rajan was working with M/s.Ansal Properties and Infrastructure Ltd., who had allotted the aforementioned flat to accused, and he had produced the complete record regarding the allotment, flat buyer agreement and details of payment made by accused with regard to said flat.
125. It was submitted that as per Ex.PW9/E (D-21), the details of payment made by accused have been reflected. It was submitted that as per Ex.PW9/E, payment of Rs.3,00,000/- made on 19.01.1993 has been wrongly added as it was made prior to the check period and payment of Rs.1,07,039/- which was the expenditure incurred by accused for paying mutation charges to the NDMC has been wrongly added to the payment made during the check period, with regard to aforementioned flat.
126. It was further submitted that total payment made by accused during the check period was to the tune of Rs.16,22,961/-and not Rs.19,22,961/- as deposed to by PW85 i.e. IO Jagroop S.Gusinha. Accordingly, it was prayed that benefit of Rs.3 Lacs be given to accused.
127. On the other hand, Ld.SPP for CBI submitted that in case, any payment has been made, prior to the check period, then the benefit of the same can be given to accused, as per evidence which has come on record.
128. It was further submitted that the payment of Rs.1,07,039/- has not been taken into cost of acquisition of CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 61/248 the aforementioned property, as per the details of the payment in Ex.PW9/E (D-21). It was further submitted that payment of Rs.1,07,039/- was made by M/s.Ansal Properties and Infrastructure Ltd. to NDMC towards the cost for mutation of flat and the said payment has been shown by the CBI under the expenditure in Statement "D". Therefore, this payment cannot be decreased from the acquisition of cost of flat as it was never taken into account while calculating the cost of acquisition.
FINDING
129. In order to appreciate the contention of respective counsels for the parties, I have carefully perused the evidence of PW9 Sh.T.Rajan, who was the Addl.General Manager of M/s.Ansal Properties and Infrastructure Ltd., New Delhi, PW48 Sh.B.S.Sandhu, who was the valuation officer-2, Income Tax Department, Delhi and had given his report Ex.PW48/1 (D-37) with regard to aforementioned flat and evidence of PW85 i.e. IO Jagroop S.Gusinha.
130. As per evidence of PW9 Sh.T.Rajan from M/s.Ansal Properties and Infrastructure Ltd., flat was allotted to accused vide allotment letter dated 19.08.1990 Ex.PW9/C (D-14) and a Flat Buyer's Agreement was, accordingly executed in this regard which is Ex.PW9/B (D-14). Therefore, these two documents prove the ownership of accused with regard to aforementioned flat.
131. Further, PW9 Sh.T.Rajan had also produced the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 62/248 details of payment received from accused vide Ex.PW9/E (D-21). As per Ex.PW9/E (D-21), the following payments were made by accused during the check period: -
S.No. Date Amount (Rs.)
1. 05.08.1993 3,00,000/-
2. 10.05.1994 22,475/-
3. 10.05.1994 57,195/-
4. 10.05.1994 4,00,330/-
5. 27.03.1996 1,00,830/-
6. 27.03.1996 5,22,536/- (Commercial Charges)
7. 27.03.1996 19,595/- (Ground Rent)
8. 14.05.1997 2,00,000/-(Car Parking)
Total 16,22,961/-
132. Further, as per Ex.PW9/D (D-14) and Ex.PW9/E (D-
21) which contains the details of payment, with regard to aforementioned flat, it is specifically mentioned that amount of Rs.1,07,039/- received on 27.03.1996 has been deducted from the cost price of the flat by issuing a Demand Draft favoring Secretary N.D.M.C. towards cost for mutation of flat. Therefore, both the documents i.e. Ex.PW9/D (D-14) and Ex.PW9/E (D-21) has not taken into account the payment of Rs.1,07,039/- made on 27.03.1996 by accused towards the cost of flat and same has been adjusted towards the payment made to NDMC with regard to mutation of flat. Therefore, the contention of Ld.counsel for accused that said payment has been wrongly added to the cost of flat is not acceptable and is accordingly, rejected.
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133. Further, in the present case, check period is from 24.05.1993 to 31.05.2006 and it seems that in the charge sheet, payment made towards purchase of flat of Rs.17,22,961/- has been wrongly calculated by adding payment of Rs.3 Lacs made on 19.01.1993, which was admittedly prior to the check period. Therefore, the documentary evidence which has come on record, in the form of Ex.PW9/D (D-14) and Ex.PW9/E (D-21) shows that payment of Rs.16,22,961/- has been made by accused towards the cost of flat including parking charges during the check period. Therefore, the evidence of PW85 i.e. IO Jagroop S.Gusinha that total payment of Rs.19,22,961/- was made by accused, during the check period, cannot be accepted. Hence, on the basis of evidence, which has come on record, total payment made by accused regarding the aforementioned flat during the check period is Rs.16,22,961/-only.
Asset No.2 - Plot No.6P, Sector-4, Mansa Devi Complex at Panchkula, Haryana having area 846 sq.mtr.
134. As per the charge sheet, the aforementioned plot was allotted to the accused in the year 1991 and the sale deed was got registered on 07.11.2005 by paying Rs.5,23,494/- (allotment price + stamp duty) during the check period.
Submissions of Ld.Defence Counsel and Ld.SPP for CBI CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 64/248
135. It was submitted by Ld.counsel for accused that value of the aforementioned property, as per the charge sheet, has been taken up as Rs.5,23,494/- which includes the cost price mentioned in the conveyance deed dated 11.10.2005 Ex.PW7/B of Rs.4,84,191/- and stamp duty of Rs.38,800/-. However, evidence which has come on record shows that accused has made payment of Rs.4,10,601/- only as per Ex.PW7/A (D-13) and in this regard, evidence of PW7 Sh.Prit Pal Singh is relevant. It was further submitted that as per Ex.PW7/A, no payment of Rs.60,685/- was made on 04.04.1996 and no payment of Rs.65,281/- was made on 04.04.1997, as there are no corresponding vouchers reflecting such payment.
136. It was further submitted that as per the file (D-44) brought by PW24 Ms.Monika Malik, payment of Rs.9,250/- and Rs.2,000/- part of Ex.PW24/A (D-44) (page 9 and 10) was made on 05.12.2006 and 29.11.2006 which is beyond the check period and hence cannot be taken into account.
137. It was further submitted that PW59 Sh.Mahavir Kaushik, was examined from HUDA, and he had prepared the details of payment made by accused vide Ex.PW59/1 and 2 (D-22) and the payment made on 04.12.2006 of Rs.29.610/- is beyond the check period and hence, cannot be taken into consideration. Therefore, the total payment which was made by accused during the check period was Rs.4,10,601/- only and the amount of Rs.5,23,494/- has wrongly been shown to have been made by accused during CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 65/248 the check period.
138. The Ld.SPP for CBI has controverted the same and has submitted that calculation of payment has been rightly made by the IO and stands proved by the evidence coming on record.
FINDING
139. To appreciate the contention of respective counsels for parties, I have perused the evidence of PW7 Sh.Prit Pal Singh, PW24 Ms.Monika Malik and PW59 Sh.Mahavir Kaushik and the relevant documents i.e. D-13, D-22 and D-44.
140. PW7 Sh.Prit Pal Singh, who was the official from HUDA, the Government department, which had allotted Asset No.2 to the accused, had produced the entire file i.e. D-13 pertaining to allotment, cost price, enhancement, interest and details of payment made by accused including the stamp duty and the conveyance deed.
141. I have carefully perused the document Ex.PW85/31 [Page 11 forming part of Ex.PW7/A (D-13)] and as per the said document, following payments have been made by accused during the check period i.e. between 24.05.1993 till 31.05.2006: -
S.No. Amount Date of Payment
1. Rs.56,767/- 06.08.1993
2. Rs.56,767/- 16.05.1995
3. Rs.56,767/- 08.08.1996
4. Rs.1,82,300/- 12.04.2002
142. Further, payment of Rs.20,000/- and Rs.38,000/-has been made by accused vide receipts dated 26.09.2005 and CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 66/248 27.09.2005 [page nos.53 and 54 of Ex.PW7/A (D-13)]. Therefore, on adding aforementioned payment, total amount comes to Rs.4,10,601/-.
143. The contention of Ld.counsel for accused that payment of Rs.60,685/-due on 04.04.1996 and of Rs.65,281/- due on 04.04.1997 is not reflected, appears to be incorrect. As per Ex.PW85/31 [Part of Ex.PW7/A (D-
13)], payment of 04.04.1996 of Rs.56,767/- has been made on 08.08.1996 and receipt in this regard is at page 31 of Ex.PW7/A (D-13). Therefore, this payment has been duly accounted for.
144. Further, second payment of 04.04.1997 of Rs.65,281/- which includes the interest part also, is part of the payment of Rs.1,82,300/- paid on 12.04.2002 vide receipt at page 40 of Ex.PW7/A (D-13). Therefore, both payments dated 04.04.1996 and 04.04.1997 are duly accounted for vide Ex.PW85/31 and the contention of Ld.counsel for accused is accordingly rejected.
145. No doubt, it is true that conveyance deed Ex.PW7/B mentions the total cost price of Rs.4,84,191/- and stamp duty of Rs.38,000/- but in the opinion of this court, the date of making payment of aforementioned property has to be taken into account while calculating the entire payment made by accused during the check period. Although conveyance deed has been executed on 11.10.2005 but entire payment of Rs.4,84,191/- was not made during the check period and break-up of the payment is duly mentioned in Ex.PW85/31(D-13) which shows that initial CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 67/248 payment of 25% of the cost i.e. Rs.1,13,533.20p. was made on 04.04.1991 and first installment of Rs.56,767/- was made on 03.04.1992 i.e. prior to the check period. Therefore, both the aforementioned payments cannot be included in the acquisition cost of the aforementioned property, during the check period.
146. Further, PW24 Ms.Monika Malik had also brought the building plan of aforementioned plot alongwith relevant documents vide Ex.PW24/A (D-44) and in the said file, payment of Rs.2,000/- and Rs.9,250/- (page 9 and
10) is reflected which was made on 29.11.2006 and 05.12.2006 respectively. Since both these payments were made beyond the check period, therefore, they cannot be taken into account.
147. PW59 Sh.Mahavir Kaushik, again witness from HUDA, has produced the details of payment made by accused vide his letter Ex.PW59/1 (D-22) wherein entire payment made by accused is detailed out which corresponds to Ex.PW85/31 except for the payment of 04.12.2006 of Rs.29,610/-. The receipt Ex.PW59/2 of Rs.29.610/- was also produced. Since payment of Rs.29,610/- was made beyond the check period, therefore, this cannot be taken into account.
148. In the light of aforesaid discussion, the amount paid by accused, during the check period as per Ex.PW85/31 and amount of Rs.20,000/- and Rs.38,000/- paid on 26.09.2005 and 27.09.2005 respectively as discussed hereinabove in para 142 i.e. total payment of Rs.4,10,601/-
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 68/248 is required to be taken into consideration to arrive at the valuation of Asset No.2, acquired during the check period. Therefore, CBI had wrongly calculated Rs.5,23,494/- as value of acquisition of Asset No.2, based on the conveyance deed dated 11.10.2005 Ex.PW7/B. Asset No.4- Land of Smt.Sneh Lata @ Kesar Devi at Village Lambi, Tehsil Dabwali, Khasra No.78/8 having ownership of area 4 Kanal.
149. As per the charge sheet, Smt.Sneh Lata, wife of accused was having land at village Lambi, Tehsil Dabwali having an area of 4 Kanal in Khasra No. 78/8 and the said land was exchanged by the wife of accused with Sh.Abhay Singh on 03.09.2000 and thereafter, a farm house was built on the said land, on which amount of Rs.70,52,200/- was spent during the check period.
150. In order to prove the said allegation, CBI had examined PW20 Sh.S.K.Rampal, who was posted as Valuation Officer, Income Tax Department, Rohtak, Haryana, at the relevant time and he had given the valuation report Ex.PW20/3 (D-39) with regard to farm house at village Lambi, Sirsa and PW46 Subhash Chander, the Patwari of village Lambi, who had produced the revenue record regarding ownership as well as record regarding cultivation of crops and the physical inspection report. No other witness was examined by the CBI in this regard.
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 69/248 Submissions of Ld.Defence Counsel and Ld.SPP for CBI
151. It was the defence of Ld.counsel for accused that no farm house exists in Khasra No. 78/8, village Lambi, Sirsa, which is in the name of wife of accused, as per revenue record brought by PW46 Subhash Chander. It was further submitted that a farm house does exist but it exists in Khasra No. 54 of village Lambi which is in the ownership of Dushyant, who happens to be the grandson of accused. It was further submitted that Mauka report (Inspection report) Ex.PW46/4 (D-27) also shows that farm house exists on one acre of land. Therefore, farm house could not be there on the land in Khasra No. 78/8, in the name of wife of accused, as it was only having an area of 4 Kanal, which is equivalent to half acre of land. It was further submitted that it has also come in the cross examination of PW20 Sh.S.K.Rampal, Valuation Officer that in his report Ex.PW20/3, no Khasra number is mentioned and he had not checked the revenue record prior to carrying out the valuation of farm house at village Lambi and even he had made no inquiry from local authorities as to when the construction had been raised of the farm house at village Lambi. Therefore, PW20 Sh.S.K.Rampal had given a report regarding the farm house, which was not existing on the Khasra No. 78/8, village Lambi and, therefore, the cost of construction of Rs.70,52,200/- is required to be decreased from the dis-proportionate assets arrived at by the CBI.
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152. On the other hand, Ld.SPP for CBI has submitted that the evidence led on record by the CBI proves that farm house does exist on Khasra No. 78/8, village Lambi and, therefore, the valuation provided by PW20 Sh.S.K.Rampal regarding cost of construction, has to be accepted as the construction was carried out during the check period.
FINDING
153. In order to appreciate the rival contentions of Ld.counsels for the parties, I have carefully perused the evidence of PW46 Subhash Chander, Patwari, who had produced the revenue record of village Lambi vide D-27.
154. As per the record of ownership produced by PW46 Subhash Chander of village Lambi i.e. Ex.PW46/5 (D-27), it shows at page no.4, the existence of farm house in Khasra No. 54/17/2 (area 2-12) and in Khasra No. 54/17/1 (area 5-8) and ownership is that of Dushyant, the grandson of accused.
155. Further, at page 19 of Ex.46/5 (D-27), ownership of Khasra No. 78/8 has been shown to be that of Kesar Devi i.e. wife of accused and area of land is shown as 4 Kanal (1/2 acre).
156. Further, PW46 Subhash Chander had also produced record of Khasra Girdawari (Record of cultivation of crops) for the year 2004-2005, 2005-2006 and 2006-2007, regarding the aforementioned Khasra numbers vide Ex.PW46/11 and it also reflects that in Khasra No. 54/17/2 and Khasra No. 54/17/1, there exists a farm house whereas CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 71/248 in Khasra No. 78/8, village Lambi, entry is there that land is irrigated and record regarding various crops being cultivated is shown in the area of 4 Kanal (1/2 acre).
157. Further, PW46 Subhash Chander had also filed on record his physical inspection report (Mauka report) of the land belonging to wife of accused, Abhay Singh and Dushyant Singh, son of Abhay Singh and the said report also confirms that wife of accused is owner of only 4 Kanal of land in Khasra No. 78/8, which she had got in exchange on 03.09.2000. The physical inspection report (Mauka report) Ex.PW46/4 (D-27) also records the fact that a farm house is built on a land measuring one acre having residential house and a cattle shed.
158. The IO i.e. PW85 Jagroop S.Gusinha of CBI had also deposed regarding the ownership of land in Khasra No. 78/8, in the name of wife of accused, which she got in exchange on 03.09.2000 from her son Abhay Singh in lieu of her equal land at village Teja Khera, Tehsil Dabwali, District Sirsa and IO PW85 Sh.Jagroop S.Gusinha has also relied upon the revenue record produced by PW46 Subhash Chander contained in document D-27. Therefore, the evidence which has come on record of CBI clearly shows that wife of accused was the owner of Khasra No. 78/8 having an area of 4 Kanal (1/2 acre) at village Lambi, Sirsa since 03.09.2000, which fact is recorded in Ex.PW46/5 at page 19 (D-27) and status of land is shown as nahri (irrigated).
159. Further, the ownership record of Khasra No.54 CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 72/248 shows that it is owned by Dushyant, the grandson of accused and in Khasra No.54/17/2 and 54/17/1, there exists a residential house and if area of both the Khasra nos i.e. 54/17/2 (area 2-12) and 54/17/1 (area 5-8) are added, it roughly translates into one acre of land and corroborates to the physical inspection report Ex.PW46/4 (D-27) certifying the existence of farm house on one acre of land. Therefore, from the revenue record produced on record, it can be said with certainty that farm house, having an area of one acre of land, was not existing in Khasra No.78/8 but was existing in Khasra No. 54/17/2 and 54/17/1, village Lambi.
160. Further, PW20 Sh.S.K.Rampal, who had given the valuation report Ex.PW20/3 (D-39) has also admitted in his cross examination that he had not mentioned the Khasra number with regard to the farm house he had evaluated and even he had not checked any revenue record while inspecting the farm house at village Lambi and even no inquiry was made from any local authority regarding the construction raised on the land and the property was identified only by the CBI officials.
161. I have carefully perused the valuation report Ex.PW20/3 (D-39) pertaining to farm house at Village Lambi, District Sirsa, Haryana and in the same, it is recorded by the valuation officer that land area is 2697 sq.m. which is equivalent to 5.33 Kanal. Therefore, it can be said with certainty that valuation report Ex.PW20/3 (D-
39) does not pertain to Khasra No. 78/8, village Lambi as CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 73/248 it was only having an area of 1/2 acre of land i.e 4 Kanal, whereas report of the valuation officer Ex.PW20/3 mentions the land area at the farm house to be 5.33 Kanal, which is lot more than 1/2 acre of land (i.e. 4 Kanal).
162. Further, the revenue record i.e. Ex.PW46/5 at page 4 (D-27) shows the existence of farm house in the land, belonging to Dushyant and there is no entry of any farm house in Khasra No.78/8 as per Ex.PW46/5 (at page 19). Therefore, the valuation report Ex.PW20/3 do not pertain to Khasra No. 78/8, village Lambi and it seems that valuation report has been incorrectly given, with regard to farm house existing in some other Khasra number. Therefore, the CBI has failed to prove on record that there existed any farm house in Khasra No. 78/8, village Lambi, Sirsa belonging to wife of accused.
163. Since existence of farm house in Khasra No.78/8, village Lambi, has not been proved, therefore, the valuation report Ex.PW20/3 pertaining to farm house at village Lambi, Sirsa, is of no significance and is required to be discarded. Hence, CBI has failed to prove that any farm house was built in the year 2002 by accused on the land falling in Khasra No.78/8, Village Lambi, belonging to his wife after incurring expenditure of Rs.70,52,200/-. Therefore, the said amount is required to be decreased from the disproportionate assets.
ASSETS NO.5 AND 6164. As per para 16.10.4 of charge sheet with regard to CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 74/248 Statement "B", details of properties mentioned at Sl.No.5 and 6, are reproduced hereinbelow:--
Sl.No. Name & Category Sale Deed Sale Deed / Sale deed Name of Regd.Owner Address of No. Mutation amount Property date as (including applicable stamp duty etc.)
5. Cattle Shed Shed Constructed Since 1960 Value taken Smt.Sneh Lata @ at village onwards alongwith Kesar Devi w/o Teja Khera, Farm Sh.Om Prakash Tehsil House Chautala Dabwali, Building as Distt.Sirsa, per Khasra valuation No.102/10/1 report
6. Residential Residenti Constructed Since 1960 1,99,86,300 Sh.Om Prakash House at al House Common onwards Chautala Village Teja Valuation Renovataed (50% Khera Tehsil Report dated in 2001-2002 share) Mandi 26.09.2008 Dabwali, for Distt.Sirsa, Rs.3,99,72,60 Survey 0/-No.103/2
jointly owned with Sh.Abhay Singh (son) 50% share
165. As per charge sheet, both the property nos.5 and 6 exist since 1960 onwards. However, they were renovated in the year 2001-2002 and cost of renovation was to the tune of Rs.3,99,72,600/- and since accused was having a half share in the properties, therefore, 50% of Rs.3,99,72,600/- i.e. Rs.1,99,86,300/- was taken as the cost of renovation in the year 2001-2002, as per the valuation report.
Submissions of Ld.Defence Counsel and Ld.SPP for CBI CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 75/248
166. With regard to these properties, it was submitted by Ld.counsel for accused that renovation cost of Rs.1,99,86,300/- has been wrongly taken up by CBI and the said fact has not been proved on record. It was submitted that existence of cattle shed and farm house since 1960 is an admitted fact of the CBI and even the witnesses examined by the CBI i.e. PW79 i.e. Sh.Ranjit Singh, brother of accused, shows the existence of farm house in Khasra No. 103/2, village Teja Khera, Sirsa since 1967 and it came in partition in share of accused in the year 1974. It was further submitted that even the revenue record produced by PW40 Sh.Madan Lal, Patwari of village Teja Khera, Tehsil Dabwali, District Sirsa, Haryana shows that a farm house exists in Khasra No. 103/2, village Teja Khera and as per Khasra Girdavari produced by PW40 Sh.Madan Lal (Part of D-28), of the year 1999, there is an entry of existence of farm house on one acre of land in Khasra No. 103/2, village Teja Khera. It was further submitted that there was an electricity connection with connected load of 15 KW installed at Teja Khera farm house and PW95 Sh.Dalip Singh, from Dakshin Haryana Bijli Vitran Nigam, had produced the details of electricity bills deposited by accused year-wise from the year 1998 onwards and the record of previous years i.e. from 1993 to 1997 could not be produced as the same was destroyed. It was further submitted that even IO PW85 Sh.Jagroop S.Gusinha in his cross-examination, had admitted that although farm house was in existence since 1960 onwards CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 76/248 and it was renovated in 2001-2002 only but the valuation officer had given the report regarding the construction done in 2001-2002. Therefore, the evidence which had come on record shows that farm house on one acre of land, was in existence in Khasra No. 103/2, village Teja Khera prior to 2001-2002. Therefore, it could not have been constructed in the year 2002.
167. It was further submitted that CBI had examined Architects, who had prepared a proposed site plan for renovation at Teja Khera farm house and both PW26 Ms.Preeti Anand Choudhary and PW54 Sh.Dalmeet Singh, who were the Architects, had deposed that only renovation work was done by their firm and the nature of renovation was specified to be shifting of front staircase to back and re-modeling of windows, for which no fees was charged by them. It was further submitted by Ld.counsel for accused that to carry out the renovation, accused had taken a house building advance of Rs.4 Lacs in the year 2000 which was sanctioned on 09.11.2000 and said fact is duly mentioned in the income tax return Ex.PW33/1 (Part of D-
33). This fact also corroborates that minor renovation work was got carried out by the accused at his Teja Khera farm house for which he had taken loan of Rs.4 Lacs. It was further submitted that no evidence has been led on record by the CBI regarding the cost of construction incurred on the renovated portion in 2001-2002 and the valuation report given by the valuation officer i.e. PW20 Sh.S.K.Rampal has been given on the assumption that the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 77/248 entire farm house was constructed in 2001-2002. It was submitted that, therefore, the valuation report Ex.PW20/2 (D-41) cannot be relied upon, in the present case, as it does not pertain to renovated portion of Teja Khera farm house. Accordingly, it was prayed that the cost of construction shown as Rs.1,99,86,300/- incurred on renovation of Teja Khera farm house be reduced from the disproportionate assets.
168. On the other hand, it was submitted by Ld.SPP for CBI that on the basis of site plan of Teja Khera farm house collected from Architects i.e. M/s.T.F.Architects Pvt.Ltd., the period of renovation of 2001-2002 was provided to the valuation officer, on the basis of which valuation report was submitted. It was further submitted that PW26 Ms.Preeti Anand Choudhary, Architect of M/s.T.F.Architects Pvt. Ltd., had admitted in her examination-in-chief, when cross examined by Ld.SPP for CBI that building of Teja Khera farm house was constructed during the period 2002. Therefore, it was proved on record that Teja Khera farm house was constructed in the year 2001-2002 and accordingly, the valuation report Ex.PW20/2 (D-41) is required to be accepted.
FINDING
169. I have considered the rival submissions made by respective counsels and have carefully perused the evidence led on record by both the parties.
170. As far as existence of Teja Khera farm house in CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 78/248 Khasra no. 103/2, village Teja Khera, District Sirsa, Haryana is concerned, it is an admitted case of CBI, as per charge sheet, that it was constructed in 1960 and it was renovated in the year 2001-2002. Apart from this assertion made by CBI in the charge sheet, there is other material on record which corroborates the said fact regarding existence of farm house in Khasra No.103/2, village Teja Khera, District Sirsa, Haryana prior to 2001-2002.
171. The CBI had examined PW79 Sh.Ranjit Singh, who happens to be the brother of accused, and he had admitted in his cross-examination that farm house at village Teja Khera was constructed in 1967 and the same was given in partition in 1974 to accused. Apart from the evidence of PW79 Sh.Ranjit Singh, there is other evidence in the form of revenue record, which was produced by PW40 Sh.Madan Lal, Patwari of village Teja Khera, Tehsil Dabwali, Haryana. The Mauka Report (Inspection Report) Ex.PW85/7 (Part of D-28) of PW40 Sh.Madan Lal, confirms the existence of a house on one acre of land, jointly owned by accused and Abhay Singh and the Nakal jamabandi of 2003-2004 of village Teja Khera, Tehsil Dabwali, District Sirsa shows existence of a house in Khasra No.103/2, village Teja Khera, which is Ex.PW85/3 (Part of D-28).
172. Further, the Khasra Girdavari record i.e. (cultivation of crop record) produced by PW40 Sh.Madan Lal (Part of D-28) shows that in Khasra No. 103/2, village Teja Khera, since the year 1999, there existed a farm house on one acre CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 79/248 of land and the relevant Khasra Girdavari of Khasra No. 103/2, village Teja Khera is part of Ex.PW85/8 (D-28). Therefore, revenue record also corroborates the said fact that farm house in Khasra No. 103/2, village Teja Khera, on one acre of land, was in existence prior to 2001-2002.
173. Further, PW95 Sh.Dalip Singh, an officer from Dakshin Haryana Bijli Vitran Nigam, had produced the details of energy bill amount, with regard to electricity connection installed at Teja Khera farm house vide Ex.PW95/1 (D-30). As per Ex.PW95/1 (D-30), there was an electricity connection of 15 KW load, installed at Teja Khera farm house belonging to accused and bill alongwith the payment record was produced of 1998 year onwards as record of previous years was not available due to their destruction.
174. In order to prove the date of installation of electricity connection, accused in his defence, had examined DW2 Sh.D.R.Verma, XEN of Dakshin Haryana Bijli Vitran Nigam, Operation Division, Dabwali, Haryana and he had produced the original service connection register, which had an entry showing the installation of electricity connection at Teja Khera farm house on 07.11.1983 and copy of said entry was retained on record as Ex.DW2/A.
175. Lastly, IO i.e. PW85 Sh.Jagroop S.Gusinha, in para 13 of his cross-examination recorded on 26.05.2017, had admitted that he had told the valuation officer that farm house was constructed in the year 1960 and renovation was done in the year 2001-2002. Therefore, the evidence, CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 80/248 which had come on record led by the CBI and accused, as discussed hereinabove, proves the existence of farm house in Khasra No. 103/2, village Teja Khera, Tehsil Dabwali, District Sirsa, Haryana prior to 2001-2002 on one acre of land.
176. Now, the next issue which is required to be decided is whether the report of valuation officer i.e. PW20 Sh.S.K.Rampal is required to be accepted or not?
177. It has come in the cross-examination of IO PW85 Sh.Jagroop S.Gusinha recorded on 26.05.2017 that he had informed the valuation officer regarding the period of construction to be 1960 and the period of renovation to be 2001-2002 but the valuation officer had given his report, taking into account the period of construction to be 2001- 2002. The valuation report Ex.PW20/2 (D-41) also mentions the period of construction to be 2001-2002, as reported by CBI. Further, PW20 Sh.S.K.Rampal in his cross examination, admitted that cost of construction would vary with the period of construction and he also admitted that cost of construction of period from 1972 to 1981 cannot be calculated as per Ex.PW20/2 (D-41).
178. Further, I have also carefully perused the valuation report Ex.PW20/2 (D-41) and the said report takes into account the entire construction found at Teja Khera farm house and there is no demarcation in the report regarding the existing construction and the renovated portion. Since, it was in the knowledge of IO PW85 Sh.Jagroop S.Gusinha that farm house was in existence from 1960 onwards, CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 81/248 therefore, it was incumbent upon the IO PW 85 Sh.Jagroop S.Gusinha to have apprised the valuation officer that cost of construction has to be provided only of the renovated portion in 2001-2002. However, since valuation officer has provided the cost of construction of the entire farm house without specifying the renovated portion, therefore, the valuation report Ex.PW20/2 (D-41) cannot be accepted.
179. Another reason for non-acceptance of valuation report Ex.PW20/2 (D-41) is the evidence of Architects of the firm M/s.T.F.Architects Pvt.Ltd., who had provided the site plan of proposed renovation at Teja Khera farm house to the IO PW85 Sh.Jagroop S.Gusinha. PW26 Ms.Preeti Anand Choudhary and PW54 Sh.Dalmeet Singh are the Architects, who were working under the name and style of M/s.T.F.Architects Pvt.Ltd. and had provided the sketches with regard to renovation of Teja Khera farm house vide document D-50. Both PW26 Ms.Preeti Anand Choudhary and PW54 Sh.Dalmeet Singh admitted that only work done by their firm at Teja Khera farm house was that of shifting of staircase from the front to the backside and even their drawings Mark P-26/2 (D-50) confirm the said fact and PW54 Sh.Dalmeet Singh deposed additionally in the cross- examination that re-modeling of some windows, as per Vastu was also done by their firm. Therefore, the evidence of PW26 Ms.Preeti Anand Choudhary and PW54 Sh.Dalmeet Singh proves on record that only renovation work which was done by M/s.T.F.Architects Pvt.Ltd. was shifting of staircase from the front portion to the backside CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 82/248 and re-modeling of some windows.
180. In the opinion of this court, for the aforesaid renovation work, cost of Rs.3,99,72,600/- cannot be incurred. Even the valuation report Ex.PW20/2 (D-41) has not worked out the estimated cost of construction in shifting of staircase from front side to the backside and the cost incurred on re-modeling of windows. Therefore, the report of valuation officer Ex.PW20/2 (D-41) cannot be accepted, as it has been given on the assumption that entire property was constructed in 2001-2002, whereas the evidence which has come on record shows that only a part renovation was done in 2001-2002 and with regard to renovated portion, no estimate of cost of construction has been given by the valuation officer.
181. Although Ex.PW20/2 (D-41) does not prove the cost of renovation but there is other evidence on record, which proves the extent of cost incurred by accused in carrying out the aforementioned renovation. The taking of house building advance of Rs.4 Lacs by accused to carry out renovation in the year 2000 is an admitted fact and stands further proved by the Income Tax Return Ex.PW33/1 (Part of D-33). However, taking of loan of Rs.4 Lacs as house building advance does not ipso facto prove that only cost of Rs.4 Lacs was incurred in carrying out aforementioned renovation at Teja Khera farm house. To throw light on the cost incurred on renovation, evidence of PW86 Sh.Rahul Bishnoi is relevant. PW86 Sh.Rahul Bishnoi was a Chartered Accountant and he had been associated with the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 83/248 family of accused for the last more than 20 years and was providing professional services to family of accused since 2001 as per his examination in chief recorded on 24.11.2015. During his cross-examination recorded on 30.03.2016, Ld.defence counsel had shown site plans Ex.PW26/A (colly) (D-26) and the drawings to the said witness and after seeing the same, PW86 Sh.Rahul Bishnoi admitted that renovation was carried out as per these plans and an expenditure of about Rs.10 Lacs was incurred on the aforementioned renovations. This admission made by PW86 Sh.Rahul Bishnoi, who was the Chartered Accountant of accused, proves that cost of renovation of Teja Khera farm house in 2001-2002 was to the tune of Rs.10 Lacs. Therefore, the cost of renovation with regard to Teja Khera farm house existing in Khasra No.103/2, village Teja Khera, Tehsil Dabwali, District Sirsa, Haryana has to be taken as Rs.10 Lacs and not Rs. 1,99,86,300/-, as per the case set up by the CBI.
Asset No.9 - Farm House at E-Block, Asola Farm, New Delhi, Khasra No.1369 & 1370.
182. As per para 16.10.4 of the charge sheet, accused was the owner of land at E-Block, Asola Farm, New Delhi, which was situated in Khasra No. 1369 and 1370 having an area of 13 Bigha and 19 Biswa ( i.e.2.905 acre) and said land was purchased by accused in the year 1988. However, a farm house was constructed on the same in 2004 and cost of the construction was assessed at Rs.1,35,05,000/-.
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 84/248 Submissions of Ld.Defence Counsel and Ld.SPP for CBI
183. During the course of arguments, it was submitted by Ld.counsel for accused that although accused has land in village Asola, New Delhi but the said land is lying vacant and there exists no farm house over the same and the farm house of some other person has been shown to be the farm house of present accused. It was submitted in this regard that revenue record produced by PW11 Sh.Iqbal Singh, patwari of village Asola, New Delhi, shows that at page no.6 of Khasra Girdawari record i.e. (record of cultivation of crops) Ex.PW11/A (D-11) that the entire land is lying vacant. Therefore, revenue record proves that farm land of accused was lying vacant and farm house has been wrongly shown to have been constructed on the land belonging to accused. It was further submitted that in the Nomination Form filed for Rori Vidhan Sabha Election i.e. Ex.PW3/2, accused has only declared his land at village Asola and there is no mention about the existence of any farm house over the same.
184. It was further submitted that although PW14 Sh.Vikas Bhayana, Director of M/s.Bhayana Builders Pvt.Ltd.has deposed that he had received around Rs.80 Lacs to Rs.90 Lacs, in respect of work at Asola farm house but the said payment was made by accused, on account of his some other personal dues and not towards the construction of farm house and PW14 Sh.Vikas Bhayana has deposed falsely about construction being done at the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 85/248 farm house of accused at village Asola, New Delhi. It was further submitted that valuation report provided by PW18 Sh.Surender Mohan Verma vide Ex.PW18/A (D-36) nowhere mentions about Khasra number of the farm house, which was assessed by PW18 Sh.Surender Mohan Verma and it has come nowhere in the evidence of PW18 Sh.Surender Mohan Verma that land was ascertained to be that of accused from the revenue authorities. Therefore, PW18 Sh.Surender Mohan Verma has given a valuation report of farm house at village Asola but same does not belong to accused and the said valuation report cannot be read against accused. Accordingly, it was prayed that the amount of Rs.1.35Crores be reduced from dis- proportionate assets.
185. On the other hand, it was submitted by Ld.SPP for CBI that the ownership of farm at E-Block, village Asola, New Delhi is not disputed by accused.
186. It was further submitted that construction of farm house at E-Block, Village Asola, New Delhi, on the land of accused, has been proved by PW14 Sh.Vikas Bhayana, Director of M/s.Bhayana Builders Pvt.Ltd., whose company had carried out the construction on the said farm house and also by PW32 Sh.S.K.Gupta, who was the project manager of M/s.Bhayana Builders Pvt.Ltd.
187. It was further submitted that accused had made payment of Rs.95 Lacs through cheques to M/s.Bhayana Builders Pvt.Ltd. and CBI has proved the aforesaid payment to M/s.Bhayana Builders Pvt.Ltd. not only by the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 86/248 evidence of PW14 Sh.Vikas Bhayana but also by bringing on record the original cheque of Rs.20 Lacs Ex.PW64/9 dated 15.12.2004 (AD-89) issued by accused from his Haryana State Co-operative Apex Bank Ltd. and three other cheques pertaining to State Bank of Patiala, Branch Defence Colony, New Delhi of Rs.25 Lacs each which are dated 15.08.2004, 25.08.2004 and 10.09.2004 (Part of D-
73) and further details of aforementioned cheques have been provided vide letter Ex.PW15/D dated 14.11.2006 (AD-81) of the Manager of State Bank of Patiala, Defence Colony, New Delhi. Therefore, all the aforementioned four cheques issued by accused from his account prove that payment of Rs.95 Lacs was made in 2004 by accused to M/s.Bhayana Builders Pvt.Ltd.
188. It was further submitted that since PW14 Sh.Vikas Bhayana, Director of M/s.Bhayana Builders, has deposed that payment was received by him on account of construction of the farm house, therefore, it was for the accused to have proved otherwise that the aforementioned amount of Rs.95 Lacs was not on account of construction of farm house but was towards the payment of his other personal dues. It was submitted that no evidence was led on record by accused in this regard and said defence has been taken up at the stage of final arguments as an after thought as no suggestion was given to PW14 Sh.Vikas Bhayana in his cross-examination. It was further submitted that the cost of construction was assessed at Rs.1,35,05,000/-by PW18 Sh.Surender Mohan Verma, who CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 87/248 had done the valuation of the aforementioned farm house and nothing was brought out in the cross examination to create a doubt regarding the valuation report. It was further submitted that no independent valuation report was produced by accused to show that cost of construction arrived at by PW18 Sh.Surender Mohan Verma was on the excessive side. Therefore, CBI had proved beyond reasonable doubt that accused had constructed a farm house during the check period for which he had incurred expenditure of Rs.1,35,05,000/- and therefore, there is no requirement of decreasing the said amount from the dis- proportionate assets.
FINDING
189. I have considered the rival submissions of respective counsels and have carefully perused the evidence of relevant witnesses examined by the CBI, with regard to aforementioned property.
190. As far as ownership of farm house is concerned, same stands proved by the evidence of PW5 Sh.Rajesh Khurana, who is the brother and attorney holder of owner of land i.e. Ashwani Khurana and he had deposed regarding selling the land to accused and to corroborate his testimony, CBI had also examined the original owner i.e. PW47 Ashwani Khurana.
191. Further, PW23 Sh.Manoj Sagar, LDC from the office of Sub-Registrar, New Delhi produced certified copy of the sale deeds bearing Registration No. 8678 & 8679 Ex.PW23/C and Ex.PW23/D respectively and both CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 88/248 these sale deeds also prove that land situated in Khasra No.1369 and 1370, village Asola, New Delhi was sold by PW5 Sh.Rajesh Khurana in favour of accused.
192. The ownership is further established on record by PW11 Sh.Iqbal Singh, who was the patwari of village Asola and had produced the revenue record of Khasra No.1369 and 1370 i.e. Khatoni (ownership record) and Khasra Girdawari, which are at page nos.1 and 2 of Ex.PW11/A (D-11) and both these documents also establish the ownership of accused of land in Khasra No.1369 and 1370 at village Asola, New Delhi.
193. The ownership of land at E-Block, village Asola, New Delhi was also disclosed by accused in his affidavit of assets filed alongwith the Nomination paper for election to Haryana Vidhan Sabha from Rori constituency and the said affidavit Ex.PW3/2 (D-48) was proved on record by PW3 Sh.Munish Kumar, Asstt.District Attorney in Sirsa, by producing the original.
194. Further, accused also admitted in answer to question no.47, at the stage of his examination under Section 313 Cr.P.C. that he owns a farm at village Asola, New Delhi. Therefore, it was proved beyond reasonable doubt that accused is the owner of land at E-Block, village Asola, New Delhi situated in Khasra No. 1369 and 1370 having area of 2.905 acre and the said land was purchased in the year 1988 from PW5 Sh.Ashwani Khurana.
195. Now, the next issue which is to be decided is whether any farm house was constructed in Khasra No. CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 89/248 1369-1370 of village Asola, New Delhi belonging to accused or not?
196. To prove the construction of farm house at E-Block, Asola Farms, New Delhi, CBI had examined PW14 Sh.Vikas Bhayana, who was the Director of M/s.Bhayana Builders Pvt.Ltd., PW32 Sh.S.K.Gupta, who was the Project Manager of M/s.Bhayana Builders Pvt.Ltd. and PW18 Sh.Surender Mohan Verma, who had carried out the valuation at Asola Farm House, PW15 Sh.Vidya Sagar, Deputy Manager, State Bank of Patiala, Defence Colony Branch, New Delhi and PW64 Sh.R.P.Singhla, Deputy General Manager, Haryana State Co-operative Apex Bank, Chandigarh.
197. PW14 Sh.Vikas Bhayana, was the Director of M/s.Bhayana Builders Pvt.Ltd, who was given the contract to build a farm house at Asola Farms, New Delhi by the accused. It has come in the evidence of PW14 Sh.Vikas Bhayana that M/s.Bhayana Builders Pvt.Ltd. had carried out the construction of farm house at Asola Farms, New Delhi, as per bill of quantities Mark P-14/1. PW14 Sh.Vikas Bhayana further deposed that their company had received around Rs.80 to Rs.90 Lacs, in respect of construction work at Asola Farm House. It was also deposed by PW14 Sh.Vikas Bhayana that total contract amount was Rs.1.20 Crores and besides the amount received by their company, there were some outstandings about which he had no knowledge. It was further deposed by PW14 Sh.Vikas Bhayana that bill of quantities Mark P-
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 90/248 14/1 although was not signed by the owner of the farm house but since all the conditions mentioned therein were accepted by the owner by making advance payment of Rs.25 Lacs, therefore, work was started at the Asola Farm House.
198. In the cross-examination of PW14 Sh.Vikas Bhayana, making of advance payment of Rs.25 Lacs, to accept the conditions of bill of quantities Mark P-14/1, was not disputed and even making of payment of around Rs.80 to Rs.90 Lacs was not disputed by accused. There being some other outstandings against construction, besides the amount paid by accused, was also not disputed, in the cross examination of PW14 Sh.Vikas Bhayana.
199. Although bill of quantities Mark P-14/1 is a photocopy but since at the time of tendering the same in evidence, no objection was raised by accused regarding its admissibility, therefore, the same is admissible in evidence, in the light of judgment of the Hon'ble Supreme Court of India delivered in R.V.E. Venkatachala Gounder vs Arulmigu Viswesaraswami & V.P., Appeal (civil) 10585 of 1996 decided on 08.10.2003 wherein it was held by the Hon'ble Supreme Court of India that "in case photocopy of a document is filed at the stage of evidence and if no objection is taken by the defence at the time when it was tendered in evidence and marked as exhibit by the court then the same is admissible in evidence". Relevant part of the aforementioned judgment is reproduced as under:--
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 91/248 "The learned counsel for the defendant-respondent has relied on The Roman Catholic Mission Vs. The State of Madras & Anr. AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 92/248 permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.
Privy Council in Padman and Others vs. Hanwanta and Others [AIR 1915 PC 111] did not permit the appellant to take objection to the admissibility of a registered copy of a will in appeal for the first time. It was held that this objection should have been taken in the trial court. It was observed:
"The defendants have now appeal to the Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar's office being put in evidence. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention."
Similar is the view expressed by this Court in P.C.Purushothama Reddiar vs. S.Perumal [1972 (2) SCR 646]. In this case the police reports were admitted in evidence without any objection and the objection was sought to be taken in appeal regarding the admissibility of the reports. Rejecting the contention it was observed:
"Before leaving this case it is necessary to refer to one of the contention taken by Mr. Ramamurthi, learned counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head-constables who CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 93/248 covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility - see Bhagat Ram V. Khetu Ram and Anr. [AIR 1929 PC 110]."
Since documents A30 and A34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photo copies, the originals of which were not produced.
200. Even otherwise, the aforementioned document was exhibited by the IO i.e. PW85 Sh.Jagroop S.Gusinha, in his examination-in-chief, as Ex.PW85/24 and it was specifically deposed by IO PW85 Sh.Jagroop S.Gusinha that the said document was sent by accused addressed to M/s.Bhayana Builders Pvt.Ltd. Even when PW85 Jagroop S.Gusinha tendered this document in evidence, no objection was raised by accused regarding its admissibility. Therefore, said document stands proved not only by the testimony of PW14 Sh.Vikas Bhayana but also by the testimony of PW85 Sh.Jagroop S.Gusinha.
201. As per bill of quantities Ex.PW85/24 (part of D-8), the total contract amount for civil / electrical work was to the tune of Rs.1,47,42,908.06p. and the civil work pertaining to excavation (reinforcement), centring and shuttering, RCC in all grades, water proofing and termite treatment, brick work, boundary wall dismantling and the electrical work included providing of conduiting work, distribution board and providing of PVC pipes. Separate cost for each work has been specifically provided in the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 94/248 bill of quantities Ex.PW85/24 (part of D-8). The bill of quantities Ex.PW85/24 (part of D-8), no where provides that any finishing work had to be done like flooring, wooden work, paint, POP etc. Since Ex.PW85/24 (part of D-8) is a document relied upon by PW14 Sh.Vikas Bhayana, therefore, whatever is the contract amount mentioned in the document and the scope of work, is required to be accepted in preference to what was deposed by PW14 Sh.Vikas Bhayana that the contract amount was Rs.1.20 Crores and it also included lot of finishing work. The reason for this discrepancy in the testimony of PW14 Sh.Vikas Bhayana regarding the contract amount and the finishing work, is not difficult to understand as the document Ex.PW85/24 (D-8) pertains to 2004 and the evidence of PW14 Sh.Vikas Bhayana was recorded in 2012. Therefore, it is not humanly possible to remember each and every detail of the contract after a gap of 08 years. Further, written document is repository of what was agreed between the parties, as human memory tends to fade away with the passage of time. The Indian Evidence Act, 1872 has also recognized this fact that human memory tends to fade away with passage of time and therefore, has given pre-dominance to a written document over any oral testimony, which is contrary to written document.
202. As per Section 91 of the Indian Evidence Act, 1872, when the terms of the contract is reduced into a document, then no evidence is required to be given for proof of those CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 95/248 matters except the document itself. Further, Section 92 of the Indian Evidence Act, 1872 excludes any oral evidence, with regard to document referred to in Section 91 of the Indian Evidence Act, 1872, which contradicts, varies, adds or subtracts to the terms of the contract, which have been reduced into a written document.
203. In the present case, since contract i.e. bill of quantities Ex.PW85/24 (part of D-8) has been proved on record, therefore, the oral deposition made by PW14 Sh.Vikas Bhayana, regarding the amount of contract and regarding the scope of work, has to be excluded. The amount of contract, as per Ex.PW85/24 (part of D-8) was Rs.1,47,42,908.06p. and the contract Ex.PW85/24 (part of D-8) did not include any kind of finishing work. Similarly, the oral evidence of PW14 Sh.Vikas Bhayana that his company had only received Rs.80 to Rs.90 Lacs, is required to be excluded as documentary evidence which has come on record shows that payment of Rs.95 Lacs was made by accused to M/s.Bhayana Builders Pvt.Ltd. through cheques. In this regard, CBI had examined PW15 Sh.Vidya Sagar, who was the Deputy Manager, State Bank of Patiala, Defence Colony Branch, New Delhi where accused was having an account, and he had produced three cheques issued by accused from the said account vide letter dated 04.01.2008 Ex.PW15/B (D-73) and also provided the details of cheque issued to M/s.Bhayana Builders Pvt.Ltd. from the aforesaid account of accused vide letter dated 14.11.2006 Ex.PW15/D (AD-81). The CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 96/248 original three cheques, which are part of Ex.PW15/B (D-
73) shows that payment of Rs.75,00,000/- was made vide cheques dated 15.08.2004, 25.08.2004 and 10.09.2004 (Part of D-73) of Rs.25,00,000/- lacs each to M/s.Bhayana Builders Pvt.Ltd.
204. The CBI had also examined PW64 Sh.R.P.Singhla, Deputy General Manager, Haryana State Co-operative Apex Bank, Chandigarh, who proved that cheque of Rs.20,00,000/- dated 15.12.2004 Ex.PW64/9 (AD-89) was issued from their account favouring M/s.Bhayana Builders Pvt.Ltd. Therefore, the aforementioned original four cheques prove that payment of Rs.95 Lacs was made by accused to M/s.Bhayana Builders Pvt.Ltd. The defence of accused that aforementioned payment was made, on account of some personal dues to M/s.Bhayana Builders Pvt.Ltd. is required to be rejected as no suggestion was given by Ld.defence counsel, during the course of cross- examination of PW14 Sh.Vikas Bhayana and even no such explanation was given by accused, at the stage of his examination under Section 313 Cr.P.C. This defence has been taken up for the first time, at the stage of final arguments and is required to be rejected being an after thought and also due to the fact that there is no credible evidence, led on record by accused in support of his defence.
205. It has also come in the evidence of PW14 Sh.Vikas Bhayana that there were some outstandings also against accused, apart from payment made by him to their CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 97/248 company through cheques. Although the balance payment was not specified by PW14 Sh.Vikas Bhayana but in the cross examination of PW14 Sh.Vikas Bhayana, it was nowhere disputed by accused that there is no outstanding against accused, apart from payment made by him through cheques.
206. There is no dispute by the accused that contractual work, as per Ex.PW85/24 (part of D-8) was not completed by M/s.Bhayana Builders Pvt.Ltd. The completion of contractual work also stands proved on record by the valuation report Ex.PW18/A (D-36). The valuation report Ex.PW18/A (D-36) provides the estimate of cost of construction regarding the construction found at the site and the electrical work done at the site. In the cross examination of PW18 Sh.Surender Mohan Verma, accused had nowhere disputed that construction work as per the contract Ex.PW85/24 (D-8) was not completed and, therefore, valuation report Ex.PW18/A (D-36) is excessive. Therefore, the valuation report Ex.PW18/A (D-36) also establishes on record that civil work / electrical work was found complete, as per contract Ex.PW85/24 (D-8). There is also no evidence on record to show that any legal proceedings were initiated by M/s.Bhayana Builders Pvt.Ltd. to recover the outstanding amount as per Ex.PW85/24 (part of D-8) from the accused. Further, M/s.Bhayana Builders Pvt.Ltd. is a private limited company and it is not believable that from the contractual amount of Rs.1,47,42,908.06p., they will be satisfied by CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 98/248 receiving the amount of Rs.95 Lacs only and rest amount would be foregone or not claimed from the accused. It is not believable that any Private Limited company will suffer a loss to the tune of Rs.52,42,908.06p. Therefore, the possibility of M/s.Bhayana Builders Pvt.Ltd. having received the entire contractual amount from accused in some other mode i.e. by cash etc. cannot be ruled out and possibility of M/s.Bhayana Builders Pvt.Ltd. admitting to have received only that part of amount, which is reflected in their books of account, cannot be ruled out. It is also not the defence of accused that entire contractual amount was not paid by him due to some dispute with M/s.Bhayana Builders Pvt.Ltd. regarding the contract Ex.PW85/24 (part of D-8).
207. Further, during the examination of accused under Section 313 Cr.P.C., a specific question no.47 was put to accused regarding the contract Ex.PW85/24 (part of D-8) in answer to which accused only admitted regarding his having a Farm in Asola but with regard to contract Ex.PW85/24 (part of D-8) or regarding the contractual amount, nothing was explained. Therefore, accused admitted the contractual amount and also did not dispute its payment. Therefore, the value of construction of Farm House at Asola, New Delhi is required to be taken, as per contract Ex.PW85/24 (part of D-8) i.e. Rs.1,47,42,908.06p. and not as per the valuation report Ex.PW18/A (D-36).
208. The reason for the same is that PW18 Sh.Surender Mohan Verma, Valuation Officer has only given the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 99/248 estimated cost of construction vide his report Ex.PW18/A (D-36) of Rs.1,35,05,000/-. The exact cost of construction can be specified either by the person, who has made the payment or by the person, who had constructed the said farm house.
209. In the present case, since construction was carried out by M/s.Bhayana Builders Pvt.Ltd., therefore, they are in a better position to specify the exact cost of construction incurred on building the farm house at Asola, New Delhi. Further, accused will also be required to make payment, as per contract Ex.PW85/24 and not as per estimate of construction arrived at by the valuation officer vide his report Ex.PW18/A (D-36). Therefore, in the opinion of this court, the construction cost of the Farm House as provided in the contract Ex.PW85/24 (part of D-8), is required to be taken into account, as it is more realistic in comparison to the valuation report Ex.PW18/A (D-36), which is just an estimate of construction.
210. The contention of Ld.counsel for accused is that in Khasra Girdavari, at page 6 of Ex.PW11/A (D-11), the entire land of accused has been shown to be vacant, which proves that there was no farm house existing on the said land is required to be rejected as page no.6 of Ex.PW11/A (D-11) is Khasra Girdavari of village Gadaipur, Hauz Khas and the revenue record of village Asola is at page nos.1 and 2 of Ex.PW11/A (D-11) where details of ownership of Khasra No.1369-1370 of village Asola have been shown to be that of accused. There is no endorsement in either of CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 100/248 these documents that the land is lying vacant and there exists no farm house over the same.
211. The existence of farm house in Khasra No. 1369- 1370 in village Asola, New Delhi was also proved on record by the defence witnesses brought by accused i.e. DW6 Sh.Ramesh Chand and DW11 Sh.Dharamvir. DW6 Sh.Ramesh Chand was examined by accused and he deposed that he is the caretaker of Asola Farm House and the aforesaid land was purchased by Sh.Devi Lal, father of accused and he had got the farm house constructed in the year 1990.
212. Further, it has also come in the evidence of DW11 Sh.Dharamvir, who was associated with late Devi Lal, father of accused, that it was late Devi Lal, who had purchased the land at village Asola and had constructed a building therein for the purpose of party workers and he was the person responsible for making all the arrangement for meetings to be held at Asola building.
213. The purchase of farm house by Late Devi Lal, father of accused and its construction in the year 1990, as deposed by DW6 Sh.Ramesh Chand and DW11 Dharamvir is not trustworthy and believable, in the light of prosecution evidence, which has come on record that land was purchased in the year 1988 by accused from PW5 Sh.Rajesh Khurana and the construction over the same was proved by PW14 Sh.Vikas Bhayana in the year 2004 and payment made by accused of Rs.95 Lacs through cheques also prove that construction was raised after 2004 by CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 101/248 accused himself. Therefore, evidence of DW6 Sh.Ramesh Chand and DW11 Dharamvir is not at all trustworthy and believable with regard to the factum of purchase of land by Devi Lal or its construction. However, testimony of DW11 Dharamvir and DW6 Sh.Ramesh Chand corroborates the testimony of prosecution witnesses regarding existence of a farm house at village Asola, New Delhi belonging to accused and demolishes the case of accused that land is lying vacant and farm house has been wrongly shown to have been existing on the land of accused.
214. Therefore, it was proved on record by the CBI that a farm house was constructed at E-Block, village Asola, Khasra No. 1369-1370, Delhi by M/s.Bhayana Builders Pvt.Ltd. in the year 2004 (within the check period) and the cost of construction was to the tune of Rs.1,47,42,908.06p. Asset No. 10 - Flat No. P-1, Haryana Jan Pratinidhi Co-operative Group Housing Society Ltd., Sector-28, Gurgaon.
215. As per the charge sheet, the said flat was acquired by accused during the check period for Rs.50 Lacs. Submissions of Ld.Defence Counsel and Ld.SPP for CBI
216. No arguments were led by Ld.Defence counsel regarding this asset and Ld.counsel for accused had submitted that this court can peruse the evidence to find out whether acquisition of this flat was proved or not?
217. On the other hand, Ld.SPP for CBI submitted that in the light of overwhelming evidence, it is proved that CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 102/248 accused had acquired the said asset and that is why Ld.Defence counsel did not lead any arguments.
FINDING
218. I have carefully perused the record and it appears that Ld.Defence counsel consciously did not lead any arguments as the acquisition of said asset was proved by clinching evidence. The relevant witnesses examined by CBI to prove the ownership and payment made by accused are PW62 Sh.Gopi Chand Gahlot, who was the President, Haryana Jan Pratinidhi Co-operative Group Housing Society Ltd. and PW66 Sh.Sham Sunder Chauhan, Branch Manager, SBI, Village Chautala, District Sirsa, Haryana.
219. PW62 Sh.Gopi Chand Gahlot was the President of Haryana Jan Pratinidhi Co-operative Group Housing Society, in the year 2007, and he had handed over list of members of Haryana Jan Pratinidhi Co-operative Group Housing Society to CBI and the flats allotted to its members vide File D-54 and D-55.
220. The allotment of Flat P-1, Haryana Jan Pratinidhi Co-operative Group Housing Society Ltd., Sector-28, Gurgaon to accused was proved by the allotment letter Ex.PW62/1 (D-54) and mark P-62/D showed the payment of Rs.50 Lacs received through cheques. Further, PW62 Sh.Gopi Chand Gahlot, while being examined by the prosecution, had admitted that Flat P-1, Haryana Jan Pratinidhi Co-operative Group Housing Society was allotted to accused. However, he denied about receipt of Rs.50 Lacs. Therefore, the ownership of Flat P-1, Haryana CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 103/248 Jan Pratinidhi Co-operative Group Housing Society, Sector-28, Gurgaon was proved by the evidence of PW62 Sh.Gopi Chand Gahlot as well as by the allotment letter Ex.PW62/1 (D-54).
221. Further, the payment of Rs.50 Lacs was proved by PW66 Sh.Sham Sunder, who was the Branch Manager of SBI, Village Chautala, District Sirsa, Haryana by producing three cheques in original, which are dated 19.02.2005 of Rs.15 Lacs Ex.PW66/9, dated 21.02.2005 of Rs.15 Lacs Ex.PW66/10 and dated 22.02.2005 of Rs.20 Lacs Ex.PW66/11 in favour of Haryana Jan Pratinidhi Co- operative Group Housing Society (AD-86).
222. Further, during the course of examination of accused under Section 313 Cr.P.C., the incriminating evidence coming on record, with regard to aforementioned flat was put to accused and accused had admitted in answer to question no.52 that penthouse No. P-1, Haryana Jan Pratinidhi Co-operative Group Housing Society was acquired by him and payment vide cheques was also admitted in answer to question no. 57.
223. Therefore, the evidence of aforementioned two witnesses and the admission made by accused under Section 313 Cr.P.C. proved the ownership of Flat No. P-1, Haryana Jan Pratinidhi Co-operative Group Housing Society, Sector-28, Gurgaon and payment of Rs.50 Lacs having been made in 2005 i.e. within the check period.
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 104/248 Asset No.11--Plot No.6, Pocket-11, Block-D, Sector-8, Rohini, Delhi.
224. As per Statement "B" of Para 16.10.4 at Serial No.11 of the charge sheet, it is mentioned that residential building was constructed during the period from 2004 to 2005 over Plot No.6, Pocket-11, Block-D, Sector-8, Rohini, Delhi having an area of 92 sq.mtr. and the cost of the construction was to the tune of Rs.11,95,600/-.
225. In order to appreciate the cost of construction and the period of construction, CBI had examined PW35 Sh.Arunanshu Malik, who was posted as Asstt.Valuation Officer-1, Income Tax Department, New Delhi in the year 2008. PW35 Sh.Arunanshu Malik had carried out the valuation of aforementioned property and thereafter, had given his valuation report Ex.PW35/2 (D-40). The other witness examined by the CBI to prove the period of construction was PW44 Ms.Usha, who was the Deputy Director, Lease Administration Branch, Rohini and had produced the entire DDA File (D-15) having various correspondence made by accused with the DDA, deposit of payment, Lease Deed and Special Power of Attorney.
Submissions of Ld.Defence Counsel and Ld.SPP for CBI
226. It was contended by the Ld.counsel for accused that it has nowhere been proved on record by the CBI that residential building on the aforesaid property was constructed during the period between 2004-2005. It was CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 105/248 further submitted that valuation report Ex.PW35/2 (D-40) is a photocopy and hence, inadmissible in evidence. It was further submitted that evidence of PW35 Sh.Arunanshu Malik does not inspire any confidence as PW35 Sh.Arunanshu Malik had never visited the aforementioned property to carry out the valuation. It was submitted in this regard that PW35 Sh.Arunanshu Malik in his cross- examination, had admitted that he doesn't know as to who had opened the door of the house when he had gone there for valuation and even no photographs were taken of the building. Even rough notesheet prepared at the spot was not produced. Therefore, all these admissions show that PW35 Sh.Arunanshu Malik had never visited the aforementioned property for the purpose of valuation.
227. It was further submitted that PW35 Sh.Arunanshu Malik was also unable to tell in his cross-examination as to on whose instance, he had taken the period of construction to be 2004-2005. It was submitted that in the light of valuation report Ex.PW35/2 (D-40) being inadmissible as it is a photocopy and the evidence of PW35 Sh.Arunanshu Malik showing that he had not visited the property or had ascertained the period of construction to be 2004-2005, therefore, valuation report Ex.PW35/2 (D-40) do not prove the case of the CBI that cost of Rs.11,95,600/-was incurred to raise the construction on the said plot during the period 2004-2005.
228. It was further submitted that accused had discharged the onus put upon him to show that the residential building CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 106/248 was constructed, prior to the check period, by examining DW7 Kuldeep. It was submitted that DW7 Kuldeep was given the possession of plot immediately after the accused took the possession of same and the entire expenditure for raising construction was borne by DW7 Kuldeep, who was also residing in the said property.
229. It was further submitted that evidence of DW7 Kuldeep proves that the building was constructed prior to the check period and the CBI had wrongly valued the property to be Rs.11,95,600/- on the basis of valuation report Ex.PW35/2 (D-40), which otherwise was also inadmissible. Accordingly, it was prayed that cost of construction be decreased from disproportionate assets.
230. On the other hand, Ld.SPP for CBI had submitted that although it is true that valuation report Ex.PW35/2 (D-
40) is a photocopy but since accused had not raised any objection, at the time of tendering the same in evidence, therefore, accused admitted the genuineness of the document Ex.PW35/2 (D-40) and cannot question its authenticity, at this stage.
231. It was further submitted that the defence witness DW7 Kuldeep was cross-examined by the CBI and from his cross-examination, it came on record that testimony of DW7 Kuldeep cannot be relied upon, as he was an interested witness being relative of accused. It was further submitted that evidence of DW7 Kuldeep proves that he was appointed Special Power Attorney holder vide Ex.DW7/D (D-15) by accused, with regard to getting the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 107/248 conveyance deed executed, on behalf of accused and thereafter, DW7 Kuldeep had got the Lease Deed Ex.PW85/15 (D-15) dated 24.01.2001 executed on behalf of accused.
232. It was further submitted that DW7 Kuldeep also admitted in his examination in chief that he has written various letters dated 15.01.2003 Ex.DW7/A, dated 24.04.2002 Ex.PW85/18 and dated 07.03.2002 Ex.DW7/C seeking extension of time to raise construction / to complete the building. Therefore, all the aforementioned letters written by DW7 Kuldeep being Special Power Attorney Holder of accused, shows that no residential building was constructed prior to December, 2003 as per Ex.DW7/A and that is why extension of time was being sought by accused for completion of building.
233. It was further submitted that DW7 Kuldeep had deposed falsely that residential building was constructed prior to check period, as DW7 Kuldeep was unable to tell the name of the contractor, who had constructed the building, neither could tell the name of the tenant residing therein and neither could produce any documentary record like water, electricity, house tax bill to show that residential building was in existence. Therefore, the CBI had rightly taken the period of construction to be 2004- 2005 and cost of construction as per the valuation report Ex.PW35/2 (D-40).
234. It was further submitted that accused, while being examined under Section 313 Cr.P.C., in answer to question CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 108/248 no.59 regarding valuation report Ex.PW35/2 (D-40), had answered by stating that valuation is excessive. However, no evidence was brought on record by accused in his defence, in the form of any independent valuation report to show that valuation arrived at vide Ex.PW35/2 (D-40) was excessive. It was further submitted that valuation report Ex.PW35/2 (D-40) is exhaustive in nature and has given the details of residential structure found therein i.e. two storeyed building on the exact plinth area and accordingly, the valuation was arrived at. Therefore, no fault can be found in the valuation report Ex.PW35/2 (D-40) and valuation of residential building mentioned therein, is required to be accepted. Accordingly, a prayer was made to reject the contention of Ld.Defence counsel.
FINDING
235. I have considered the rival submissions of Ld.counsels and have carefully perused the evidence which has come on record.
236. The first fact which CBI was required to prove was that residential building at Plot No.6, Pocket-11, Block-D, Sector-8, Rohini, Delhi was constructed during the period 2004-2005. In this regard, CBI had examined PW44 Ms.Usha, Deputy Director, Lease Branch, DDA, Rohini, Delhi, who had produced the entire file pertaining to aforementioned plot i.e. D-15.
237. In the file D-15, there is special power of attorney executed by accused and his wife in favour of DW7 Kuldeep Ex.DW7/D (D-15) authorizing Kuldeep to do all CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 109/248 the necessary work for the purpose of getting the lease deed executed. The execution of Special Power of Attorney Ex.DW7/D (also numbered as Ex.PW85/17) in favour of DW7 Kuldeep is not disputed by accused, as accused admitted regarding execution of Special Power of Attorney Ex.DW7/D (D-15) in favour of DW7 Kuldeep in answer to question no.22 in his examination under Section 313 Cr.P.C.
238. Further, even DW7 Kuldeep admitted in his examination in chief that Special Power of Attorney Ex.DW7/D (D-15) was executed in his favour by accused, who happens to be his relative.
239. Further, file D-15 has various letters written by DW7 Kuldeep to Deputy Director, DDA being Special Power Attorney holder of accused and his wife, seeking extension of time to complete the construction of his house. The said letters are dated 15.01.2003 Ex.DW7/A, dated 24.04.2002 Ex.PW85/18 and dated 07.03.2002 Ex.DW7/C. DW7 Kuldeep in his examination in chief admitted to have written these letters and they bear his signature at point "A". As per letter Ex.DW7/A, DW7 Kuldeep had sought time till 31.12.2003 to complete the construction. Further, as per letter dated 24.04.2002 Ex.PW85/18, a sum of Rs.81,267/- has also been deposited, in compliance of letter dated 14.03.2002 Ex.PW85/86 granting permission by DDA for construction subject to making payment of Rs.81,267/-.
240. Further, there is a letter dated 29.06.2003 CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 110/248 Ex.PW85/19 whereby further payment of Rs.8,117/- has been deposited, with regard to extension of time to raise construction.
241. Although DW7 Kuldeep, in his examination-in- chief, had offered an explanation as to why he was writing letters to DDA seeking extension of time, as he never wanted to tell the accused that the building is complete and to show his truthfulness, he used to write such letters but the explanation offered by DW7 Kuldeep is not at all plausible. The reason for the same is that it has come in the examination in chief of DW7 Kuldeep that accused had got the property vacated from DW7 Kuldeep in 2001 as accused had come to know that the property has been let out to some tenants. Therefore, when DW7 Kuldeep was himself not staying in the property, there was no reason for him to write letters seeking extension of time and that too by depositing huge amount of Rs.81,267/- and Rs.8,117/- respectively.
242. Secondly, it has also come in the evidence of DW7 Kuldeep that he was not having cordial relations with accused after 2001. Therefore, it is not believable that he will continue to write letters to DDA seeking extension of time by paying the composition fees of Rs.81,267/- and Rs.8,117/- respectively.
243. Thirdly, no document has been produced on record by accused in his defence to show existence of residential house in the aforesaid plot prior to check period. If testimony of DW7 Kuldeep is to be believed that property CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 111/248 was rented out to the tenants, then the least which was expected from accused was to produce water and electricity bills because without basic necessity of water and electricity, the building would not have been habitable, to be rented out. However, no such documents have been produced on record which also dis-prove the existence of any construction over the plot in question prior to check period.
244. Fourthly, DW7 Kuldeep in his evidence had deposed that construction was raised by him in the year 1990. However, in his cross examination, DW7 Kuldeep had deposed that he was writing letters to DDA, seeking permission to raise construction over the plot but he was not having any acknowledgment / copy of such letter. The non-production of letter by DW7 Kuldeep / accused, seeking permission from DDA to raise construction over the said plot makes this court raise an adverse inference that no such permission was sought in the year 1990 by DW7 Kuldeep to raise construction.
245. Further, the CBI had produced the entire file regarding the plot in question i.e. D-15, which contains all the correspondence of the accused with the DDA, details of payment, Lease deed etc. and in the said D-15, there is no such letter showing that any permission was sought by DW7 Kuldeep in the year 1990 from DDA to raise construction over the said plot. Therefore, DW7 Kuldeep has deposed falsely on this aspect and hence, his testimony is required to be discarded. Therefore, the evidence which CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 112/248 has come on record proves that there was no construction existing on the plot in question prior to December, 2003 and that is why vide letter Ex.DW7/A, time had been sought till December, 2003 to complete the construction of the house. Therefore, period of construction was rightly taken by the CBI to be between 2004-2005.
246. Now, the next question which is required to be decided is whether the valuation report Ex.PW35/2 (D-40) is admissible in evidence or not?
247. It was the contention of Ld.counsel for accused that valuation report Ex.PW35/2 (D-40) is inadmissible in evidence, being a photocopy.
248. The said contention of Ld.counsel for accused regarding valuation report Ex.PW35/2 (D-40) being inadmissible in evidence is required to be rejected. The reason for the same is that although it is true that valuation report Ex.PW35/2 (D-40) is a photocopy, though signed in original by PW35 Sh.Arunanshu Malik, but the same is still admissible in evidence as when the valuation report Ex.PW35/2 (D-40) was tendered in evidence by PW35 Sh.Arunanshu Malik, no objection was taken by Ld.defence counsel regarding its admissibility. Therefore, the valuation report Ex.PW35/2 (D-40) is admissible in evidence. I am fortified in my reasoning by the judgment of the Hon'ble Supreme Court of India delivered in R.V.E. Venkatachala Gounder's case (Supra).
249. Now, the next issue, which is required to be dealt with is, whether the valuation of property of CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 113/248 Rs.11,95,600/- is just and reasonable or not?
250. I have carefully perused the valuation report Ex.PW35/2 (D-40) and valuation report Ex.PW35/2 (D-
40) gives the details of how the extract of cost of Rs.11,95,600/- was worked out, how the plinth area rates were calculated, how the cost index was taken into account, how the plinth area was calculated and thereafter, the valuation was arrived at. The valuation report Ex.PW35/2 (D-40) describes the property to be a two storeyed residential RCC structure having toilets and marble flooring which was similar to Type-V quarters and on the basis of the same, after calculating the plinth area i.e. 163.75 sq.m. and taking into account the cost index, cost of construction was arrived at Rs.11,95,600/- during the period 2004-2005.
251. Although it is true that with the valuation report Ex.PW35/2 (D-40), no photograph/site plan/ rough notesheets have been annexed, as pointed out by Ld.counsel for accused, but this fact itself does not create any doubt regarding the authenticity of valuation report Ex.PW35/2 (D-40). The reason for the same is that the description of the property given by the valuer in his valuation report Ex.PW35/2 (D-40) of it being two storeyed residential structure having toilets, is duly corroborated by the defence witness i.e. DW7 Kuldeep, who had also deposed in his examination-in-chief, that the property in question was a two storeyed building having kitchen and bathroom on each floor. Therefore, the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 114/248 description of the property given by the valuer is similar to what was deposed to by defence witness i.e. DW7 Kuldeep.
252. Further, the Ld.defence counsel had doubted about the physical visit of PW35 Sh.Arunanshu Malik, at the spot, but apart from giving a suggestion to PW35 Sh.Arunanshu Malik that he had never visited the spot, nothing more was brought on record to show that valuation report Ex.PW35/2 (D-40) pertains to some other property. The property in question is a DDA plot, which is easily identifiable. Further, PW35 Sh.Arunanshu Malik was posted in the Income Tax Department and nothing has been brought on record to show that he had any interest in giving a false report Ex.PW35/2 (D-40), at the instance of CBI.
253. Although, it is true that in the present case, no prior notice has been given to the owner of the property before carrying out the valuation but in the opinion of this court, there was no such requirement of giving a prior notice and even if there was, then non-giving of such notice is mere procedural irregularity, which can be easily ignored.
254. The admission made by PW35 Sh.Arunanshu Malik, in his cross examination that Valuation Officer, Income Tax Department, is required to give prior notice to the owner before carrying out the valuation, is not relevant to the present case, as present case is a criminal case under the PC Act, 1988 and valuation of the property in question does not pertain to the Income Tax Act, 1961.
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 115/248
255. The contention of Ld.counsel for accused that PW35 Sh.Arunanshu Malik was unable to tell as to on whose instance, the period of construction was taken as 2004- 2005, therefore, valuation report Ex.PW35/2 (D-40) is not believable, is required to be rejected as in the valuation report Ex.PW35/2 (D-40), it is specifically mentioned by PW35 Sh.Arunanshu Malik that since a fine of Rs.81,267/- was paid by accused for delay in construction and time was extended accordingly till 31.12.2002 (wrongly mentioned instead of 31.12.2003) as per Ex.DW7/A, therefore, the period of construction was taken as 2004- 2005 at the time of inspection, after discussion with CBI authorities. Therefore, PW35 Sh.Arunanshu Malik has explained in his valuation report Ex.PW35/2 (D-40) as to why the period of construction was taken as 2004-2005 and his admission in cross examination that no document was shown to him regarding construction having been raised in 2004-2005, is contrary to the document i.e. Ex.DW7/A (D-15). Therefore, as per Section 91 and 92 of the Indian Evidence Act, 1872, the oral evidence of PW35 Sh.Arunanshu Malik is required to be discarded.
256. Further, it is not believable that PW35 Sh.Arunanshu Malik, who had given his report in 2008, will remember exactly as to how the period of construction was arrived at of 2004-2005. It is also not expected from PW35 Sh.Arunanshu Malik to remember specifically as to who was found present at the plot in question and witness is bound to forget such minute details if he is examined in CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 116/248 2014 i.e. after six years of preparation of report.
257. Further, in the entire cross-examination of PW35 Sh.Arunanshu Malik, nothing was brought on record to show that valuation of the property arrived at by PW35 Sh.Arunanshu Malik was highly excessive or incorrect one.
258. The incriminating evidence coming on record i.e. valuation report Ex.PW35/2 (D-40) was put to accused vide question no.59 in his examination under Section 313 Cr.P.C. and in answer to the same, accused had stated that valuation is excessive. No where accused had answered that valuation does not pertain to his property. Even otherwise, accused had led no defence evidence to show that the plinth area mentioned in the valuation report Ex.PW35/2 (D-40) is excessive or that it is not a two storeyed residential building. On the contrary, DW7 Kuldeep corroborated the testimony of PW35 Sh.Arunanshu Malik by deposing in evidence that residential building of two storeyed existed at the Rohini plot.
259. Further, no evidence was led on record by accused to prove his defence that valuation of Rs.11,95,600/- arrived at by PW35 Sh.Arunanshu Malik vide valuation report Ex.PW35/2 (D-40) is excessive as no independent valuation report was produced on record by accused. The accused could have very well produced his own valuation report from an independent valuer to prove his defence that the valuation arrived at of Rs.11,95,600/- is excessive for CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 117/248 the period of construction i.e. 2004-2005. Therefore, CBI had proved on record, vide valuation report Ex.PW35/2 (D-40) that Rohini plot was a two storeyed residential structure having built in 2004-2005 and the cost of construction incurred by accused on building the said property was to the tune of Rs.11,95,600/-.
260. In the light of aforementioned discussion, regarding each property, it can be concluded that cost of acquisition of property / cost incurred on the construction during the check period was Rs.2,39,72,070.06p. which is summed up as follows:--
S.No. Description Cost of Cost of construction / Period of acquisition / of Assets acquisition / acquisition as per construction as per construction as evidence evidence.
per charge
sheet
1. Flat at B- Rs.17,22,961/- Rs.16,22,961/- Payment made during the
601, Gauri check period i.e. 24.05.1993
Sadan, 5, to 31.05.2006.
Hailey Road,
New Delhi
having area
of 2107
Sq.ft.
2. Plot No.6-P Rs.5,23,494/- Rs.4,10,601/- Payment made during the
in Sector-4, check period i.e. 24.05.1993
Mansa Devi to 31.05.2006.
Complex at
Panchkula
having area
846 sq.mtr.
4. Land at Rs.70,52,200/ NIL Not proved.
Village
Lambi,
Tehsil
Dabwali,
Khasra
No.78/8
having
ownership of
area 4 Kanal
5. Cattle Shed Rs.3,99,72,600- Rs.10,00,000/- Existing since 1960 onwards.
at village (50% share =
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 118/248
Teja Khera, Rs.1,99,86,300/ Renovated in 2001-2002
Tehsil
Dabwali,
Distt.Sirsa,
Khasra
No.102/10/1
AND
Residential
6. House at
Village Teja
Khera Tehsil
Mandi
Dabwali,
Distt.Sirsa,
Survey
No.103/2
jointly
owned with
Sh.Abhay
singh (son)
50% share
9. Farm House Rs.1,35,05,000/- Rs.1,47,42,908.06p Got constructed in 2004
at E-Block,
Asola Farm,
New Delhi,
Khasra
No.1369 and
1370 having
ownership of
area 13
Bigha 19
Bishwa (i.e.
2.905 areas)
10. Flat No. P-1, Rs.50,00,000/- Rs.50,00,000/- Purchased in the year 2005
The
Haryana, Jan
Pratinidhi
Co-operative
Group
Housing
Society,
Sector-28,
Gurgaon
11. Plot No.6, Rs.11,95,600/- Rs.11,95,600/- Constructed in 2004-2005
Pocket
No.11,
Block-D,
Sector-8,
Rohini,
having land
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 119/248
area 92
sq.mtr.(92.25
Sq.m)
Total Rs.4,89,85,555/- Rs.2,39,72,070.06p.
STATEMENT "B"
MOVABLE ASSETS
261. As per para 16.10.10 of the charge sheet, Movable Assets, which were acquired by the accused during check period are as follows:
1. Cash -- 80,90,618
2. Value of Household items 2005 35,43,500/-
found during search as per inventory at Tejakhera Farm House, Tejakhera, Sirsa (50% share with Abhay Singh)
3. Jewellery items as per 2005 34,30,000 declaration filed by Sh.O.P.Chautala during 2005
4. Other movable assets viz 2005 65,33,800.
values of claims/interests as declared during 2005 as per declaration filed to Election Commission by Sh.O.P.Chautala
5. Mercedez Benz car 2005 35,00,000 purchased during 2005 (Regn.No. HR-22 D 4977) from M/s.Tai Pan Traders Ltd.Ludhiana in the name of Smt.Sneh Lata Total movable assets 2,50,97,918/-
CASH
262. To prove that cash amount of Rs.80,90,618/- was CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 120/248 acquired by accused during check period, the CBI had examined bank officials, who had carried out scrutiny of accounts of accused and his wife and had summoned various bank witnesses from different banks, who had produced the statement of accused and his wife alongwith requisite certificate under the Bankers' Book of Evidence Act, 1891 / Section 65B of the Indian Evidence Act, 1872.
Submissions of Ld.Defence Counsel and Ld.SPP for CBI
263. Ld.counsel for accused had submitted that in the charge sheet, it is shown that accused had possessed movable assets i.e. cash to the tune of Rs.80,90,618/-and the said figure has been arrived at, on the basis of scrutiny of bank documents done by Sh.B.K.Narang, Manager of Punjab National Bank, and Sh.Rakesh Kesar of Oriental Bank of Commerce, Ludhiana.
264. It was further submitted that scrutiny report Ex.PW17/1 has been filed on record and in this regard, PW17 Sh.B.K.Narang and PW90 Sh.Rakesh Kesar have also been examined. It was submitted that in their cross examination, it has come on record that various blank spaces exist in the annexed pages of report as many things could not be ascertained, at the time of scrutiny of bank statement and PW17 Sh.B.K.Narang also mentioned that original document is also required to co-relate correctness or otherwise of facts mentioned in the report. However, CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 121/248 the original bank statements on the basis of which, scrutiny report Ex.PW17/1 (D-61) was prepared, was not brought on record by the CBI. Therefore, there is nothing on record to show that accused was having bank balance of Rs.80,90,618/- as on 03.05.2006. Accordingly, a prayer was made to decrease the cash amount from disproportionate assets.
265. On the other hand, it was submitted by Ld.SPP for CBI that at page no.2 of scrutiny report Ex.PW17/1 (D-
61), the bank official, who had carried out the scrutiny of the bank accounts of accused and his wife, have given details of account numbers, bank names, branch name, names of account holders and the credit balance lying in the account on 03.05.2006 and each and every entry mentioned at page no.2 of scrutiny report Ex.PW17/1 (D-
61) has been proved on record by certified statement of account filed by calling relevant witnesses from the concerned banks. Therefore, the amount of Rs.80,90,618/- was correctly shown as cash lying in the bank accounts of accused and his wife during the check period. Accordingly, a prayer was made to reject the submission of Ld.Defence counsel.
FINDING
266. I have considered the rival submissions of respective counsels and have carefully perused the scrutiny report Ex.PW17/1 (Part of D-61). As per scrutiny report Ex.PW17/1, with regard to bank account of accused and his wife, it is specifically mentioned in the report that CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 122/248 various bank accounts of accused and his wife had been examined and after perusing the statement of account for the relevant period, the figure of Rs.80,90,618/- has been arrived at.
267. The scrutiny report Ex.PW17/1 specifically mentions about the various bank accounts of the accused and his wife, its bank account number and the document on the basis of which scrutiny has been carried out i.e. account opening form, statement of account, credit voucher, cheques etc. No doubt, it is true that in the scrutiny report Ex.PW17/1 (D-61), with regard to scrutiny report of each account, the bank official has mentioned that details of some of the transactions could not be ascertained due to complete records not being available with the bank and details of the entries regarding which the details / transactions could not be ascertained, was also provided. The details, which have been sought to be ascertained in the scrutiny report Ex.PW17/1 (D-61) are to the extent of finding out the person from whom the payment was received. The said entries regarding which the person from whom the payment was received is duly mentioned at page no.48 of scrutiny report Ex.PW17/1 (D-
61). However, the scrutiny report Ex.PW17/1 (D-61) nowhere disputes the factum of receipt of credit amount in the account of accused and his wife and just because the name of the person from whom the amount has been received, has not been disclosed in the scrutiny report Ex.PW17/1 (D-61), it does not mean that due credit of the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 123/248 received amount has not been given. Therefore, the contention of Ld.counsel for accused that scrutiny report Ex.PW17/1 (D-61) cannot be relied upon as certain facts were required to be ascertained, is required to be rejected.
268. Further, during the cross examination of PW17 Sh.B.K.Narang, accused had nowhere disputed that various bank accounts, referred to, in the scrutiny report Ex.PW17/1 do not pertain to accused or his wife and the various credit and debit entries also do not pertain to accused or his wife. Further, during the course of examination of accused under Section 313 Cr.P.C., accused has admitted regarding the opening of various bank accounts by him when the incriminating evidence regarding opening of bank accounts was put to him vide question nos. 126, 205, 207, 249 to 252, 256, 279, 280, 281, 285, 288, 289, 290, 291, 293, 294 and 295.
269. Even otherwise, the CBI has brought on record the certified copies of the statement of accounts of various bank accounts showing the last balance as mentioned in the scrutiny report Ex.PW17/1. As per page no.2 of scrutiny report Ex.PW17/1 (D-61), the summary of bank balance of accused and his wife was provided as follows:-
Summary of Bank Balance in RC-2(A)/2006 ACU-VII S.No. Name of Bank Account No. Name of Credit Remarks/Sourc account Balance as e documents holder on 03.05.2006 Rs.
1. State Bank of 10023824360 Om Prakash 6,52,477 Letter India, (Old A/C Chautala dt.29.06.2009 CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 124/248 Parliament No.119051873 ( M-262/09) House, New 8) Delhi-110001 (Phone No.23011364, 23034653), Fax No.23016111
2. State Bank of 10004203832 Om Prakash 2,64,343 Rs.2,64,343/47 ( Patiala SB (Old Chautala As per CD) (Personal Account letter Banking No.4243) dt.01.07.2009 Branch), E-4, (M.260/09) Defence Colony, Ring Road, New Delhi-110024
3. State Bank of 10004217846 Om Prakash 0 Account closed Patiala TDR Worth Chautala on 28.08.2004.
(Personal Rs.22,22,443.
Banking 63/- (9 FDRs
Branch), E-4, A/c
Defence No.12920042
Colony, Ring 4302 to 3010)
Road, New
Delhi-110024
4. State Bank of 1190070068 Om Prakash 44,63,723 Letter
India, Chautala Chautala dt.25.06.2009
Branch, (M.256/09)
Distt.Sirsa-
125101
5. State Bank of 1170004205 Smt.Sneh 7,14,409 Letter
India, Chautala Lata dt.25.06.2009
Branch, (M.256/09)
Distt.Sirsa-
125101
6. State Bank of 4 FDRs Smt.Sneh 3,34,284 Letter
India, Chautala Lata dt.01.07.2009
Branch, (M-274/09)
Distt.Sirsa-
125101
7. State Bank of 117003324 Smt.Sneh 8866 Letter
India, Chautala Lata dt.25.06.2009
Branch, (M-256/09)
Distt.Sirsa-
125101
8. State Bank of A/c No.22666 Om Prakash 4900 Dormant A/c as
India, Chautala on 31.03.2004-
Aggrassain 4900.81) Letter
Colony, Sirsa dt.13.12.2007
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 125/248
(Haryana) (M-58/08)
9. State Bank of 01593006267 Smt.Sneh 0 Rs.10.65 Lac
India, Mandi Car Loan Lata (Debit)
Dabwali
Branch,
Distt.Sirsa
10. Haryana State SB A/c No. Om Prakash 1,92,616 Letter
Cooperative 18468 Chautala dt.22.06.2009
Apex Bank Ltd. (M-233/09)
(HARCO)
Sector-17B,
Chandigarh
11. Oriental Bank 2 FDR No. Sneh Lata & 14,55,000 Letter
of Commerce, 7420 & 7422 O.P.Chautala dt.18.05.2006--
Thana Road, respectively Diary No.2736
Sirsa dt.22.05.2006
TOTAL 80,90,618/-
270. With regard to entry no.1, the CBI had examined PW103 Sh.Satish Kumar, who was posted as Accountant, at Parliament House Branch of SBI. The said witness proved the covering letter written by the Branch Manager by identifying his signatures at point "X" on letter Ex.PW103/1 and also proved the Statement of Account of accused Ex.PW103/3. PW103 Sh.Satish Kumar also produced on record two certificates issued under Section 2(A) of Bankers' Book of Evidence Act, 1891, pertaining to account of accused, which are at page no.2 and 4 of Ex.PW103/2. As per Statement of Account Ex.PW103/3, at page no.9, the credit balance as on 04.05.2006 was Rs.6,52,477/- which is the exact amount mentioned at serial no.1 of page no.2 of scrutiny report Ex.PW17/1 (D-
61).
271. As per entry no.2 at page no.2 of scrutiny report CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 126/248 Ex.PW17/1 (D-61) with regard to State Bank of Patiala, Defence Colony branch, the relevant witness examined by the CBI was PW105 Sh.Avdhesh Thakur, who was the Deputy Manager of State Bank of Patiala, Defence Colony Branch. PW105 Sh.Avdhesh Thakur had produced the computer generated Statement of Account Ex.PW105/1 and as per the Statement of Account, credit balance in the account of accused on 13.04.2006 was Rs.2,64,343/-
which is the exact amount as mentioned at serial no.2 on page no.2 of scrutiny report Ex.PW17/1 (D-61). PW105 Sh.Avdhesh Thakur had also produced certificate under Section 2(A) of the Bankers' Book of Evidence Act, 1891 Ex.PW105/3 and certificate under Section 65B of the Indian Evidence Act, 1872 Ex.PW105/2 with regard to the record produced by him.
272. With regard to entry No.3 mentioned at page no.2 of scrutiny report Ex.PW17/1 (D-61), no record was produced, as value of the account was taken as NIL.
273. With regard to entry no.4 mentioned at page no.2 of scrutiny report Ex.PW17/1 (D-61), concerned bank witness from State Bank of India, Chautala branch i.e. PW69 Sh.B.R.Silla was summoned and PW69 Sh.B.R.Silla, who was posted as Manager, SBI, Chautala village, Distt.Sirsa, had proved his letter dated 25.06.2009 Ex.PW69/1 (D-65) vide which he had handed over the Statement of Account, pertaining to account of accused to CBI. At page no.9 of Ex.PW69/1 (D-65), credit balance reflected on 11.02.2006 is Rs.44,63,723/-.
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274. Since the Statement of Account annexed to Ex.PW69/1 (D-65) was not duly certified as per the Bankers' Book of Evidence Act, 1891 and the Indian Evidence Act, 1872, therefore, CBI had moved an application to lead legally admissible evidence and the said application was allowed vide order dated 09.02.2017. Thereafter, CBI had again summoned bank witness i.e. PW106 Sh.Narain Singh alongwith the duly certified Statement of Account.
275. PW106 Sh.Narain Singh, Branch Manager, SBI, Chautala Branch, produced the account statement pertaining to Account No.70068 of the accused being maintained at State Bank of India, Chautala Branch, which was exhibited as Ex.PW106/2 alongwith requisite certificates under Section 2(A) of the Bankers' Book of Evidence Act, 1891 and under Section 65B of the Indian Evidence Act, 1872 which were exhibited as Ex.PW106/3 and Ex.PW106/6. As per Statement of Account Ex.PW106/2, credit balance in the account of accused on 11.02.2006 was Rs.44,63,723/-. Therefore, evidence of PW69 Sh.B.R.Silla and PW106 Sh.Narain Singh also prove the entry no.4 of page no.2 of scrutiny report Ex.PW17/1 (D-61).
276. With regard to entry no.5 at page no.2 of scrutiny report Ex.PW17/1 (D-61), concerned bank witness from State Bank of India, Chautala i.e. PW69 Sh.B.R.Silla was summoned and he had proved his letter dated 25.06.2009 Ex.PW69/1 (D-65) vide which he had handed over the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 128/248 Statement of Account, pertaining to account of wife of accused to CBI. At page no. 13 of Statement of Account of Ex.PW69/1 (D-65), credit balance reflected on 20.04.2006 is Rs.7,14,409/-.
277. Since the Statement of Account annexed to Ex.PW69/1 (D-65) was not duly certified as per the Bankers' Book of Evidence Act, 1891 and the Indian Evidence Act, 1872, therefore, CBI had moved an application to lead legally admissible evidence and the said application was allowed vide order dated 09.02.2017. Thereafter, CBI had again summoned bank witness i.e. PW106 Sh.Narain Singh alongwith the duly certified Statement of Account.
278. PW106 Sh.Narain Singh produced the account statement pertaining to Account No. 04205 of the wife of accused being maintained at State Bank of India, Chautala Branch, which was exhibited as Ex.PW106/1 alongwith requisite certificates under Section 2(A) of the Bankers' Book of Evidence Act, 1891 and under Section 65B of the Indian Evidence Act, 1872, which were exhibited as Ex.PW106/6 and Ex.PW106/3. As per Statement of Account Ex.PW106/1, credit balance in the account of wife of accused on 20.04.2006 was Rs.7,14,409/-. Therefore, evidence of PW69 Sh.B.R.Silla and PW106 Sh.Narain Singh also prove the entry no.5 of page no.2 of scrutiny report Ex.PW17/1 (D-61).
279. With regard to entry no.6 mentioned at page no.2 of scrutiny report Ex.PW17/1 (D-61), concerned bank CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 129/248 witness from State Bank of India, Chautala branch i.e. PW69 Sh.B.R.Silla was examined, who had provided the information to the CBI vide letter dated 01.07.2009 Ex.PW69/2 (D-68 ) with regard to 4 FDRs, in the name of wife of accused. The details provided by PW69 Sh.B.R.Silla vide Ex.PW69/2 (D-68) are as follows: -
S.No. Account No. Amount
1. 6984 1,85,649/-
2. 775996 31,804/-
3. 775997 13,994/-
4. 6473 1,02,835/-
Total 3,34,282/-
280. The said fact was also corroborated by another witness from SBI, Chautala i.e. PW66 Sh.Sham Sunder Chauhan, who was posted as Branch Manager, SBI at village Chautala, Distt.Sirsa, who vide his letter dated 04.05.2006 Ex.PW66/1 (D-70) had also provided the same details, as mentioned hereinabove, in the name of Sneh Lata, wife of accused.
281. In the cross examination of PW66 Sh.Sham Sunder Chauhan, Ld.Defence counsel did not doubt the correctness of FDR nos. or the amount as mentioned in Ex.PW66/1 (D-70) standing in the name of Sneh Lata, wife of accused meaning thereby that all the details furnished vide Ex.PW66/1 (D-70) were admitted to be correct.
282. With regard to entry no.7 mentioned at page no.2 of CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 130/248 scrutiny report Ex.PW17/1 (D-61), concerned bank witness from State Bank of India, Chautala branch i.e. PW69 Sh.B.R.Silla was summoned and PW69 Sh.B.R.Silla, who was posted as Manager, SBI, Chautala village, Distt.Sirsa, had proved his letter dated 25.06.2009 Ex.PW69/1 (D-65) vide which he had handed over the Statement of Account, pertaining to account of wife of accused to CBI. At page no.19 of Ex.PW69/1 (D-65), credit balance reflected on 07.01.2006 is Rs.8,868/-.
283. Since the Statement of Account annexed to Ex.PW69/1 (D-65) was not duly certified as per the Bankers' Book of Evidence Act, 1891 and the Indian Evidence Act, 1872, therefore, CBI had moved an application to lead legally admissible evidence and the said application was allowed vide order dated 09.02.2017. Thereafter, CBI had again summoned bank witness i.e. PW106 Sh.Narain Singh alongwith the duly certified Statement of Account.
284. PW106 Sh.Narain Singh, Branch Manager, SBI, Chautala Branch, produced the account statement pertaining to Account No. 3324 of the wife of accused being maintained at State Bank of India, Chautala Branch, which was exhibited as Ex.PW106/7 alongwith requisite certificate under Section 2(A) of the Bankers' Book of Evidence Act, 1891 and under Section 65B of the Indian Evidence Act, 1872 Ex.PW106/6. As per Statement of Account Ex.PW106/7, credit balance in the account of wife of accused on 07.01.2006 was Rs.8,866/-. Therefore, CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 131/248 evidence of PW69 Sh.B.R.Silla and PW106 Sh.Narain Singh also prove the entry no.7 of page no.2 of scrutiny report Ex.PW17/1 (D-61).
285. With regard to entry no.8 of page 2 of scrutiny report Ex.PW17/1 (D-61), the CBI had examined PW100 Sh.Ved Prakash, who was working as Assistant in the SBI, Main Branch, Sirsa and he had produced the statement of account pertaining to account no.22666 of accused and the last credit balance within the check period is of 31.12.2005 of Rs.4,816.81p. The said witness has also produced on record the certificate issued under the Bankers' Book of Evidence Act, 1891 and under Section 65B of the Indian Evidence Act, 1872 and the same was exhibited as Ex.PW100/1. Therefore, the amount proved on record is of Rs.4,816.81p. and not Rs.4,900/- as per scrutiny report Ex.PW17/1 (D-61).
286. With regard to entry no.9 of page 2 of Scrutiny Report Ex.PW17/1 (D-61), PW17 Sh.B.K.Narang has mentioned that wife of accused had taken car loan of Rs.10.65 Lacs from State Bank of India, Mandi Dabwali Branch, Distt.Sirsa and since this was a debit entry, therefore, its value was taken as NIL.
287. With regard to entry no.10 mentioned at page no.2 of scrutiny report Ex.PW17/1 (D-61), concerned bank witness from Haryana State Cooperative Apex Bank Ltd., Chandigarh i.e. PW49 Sh.Siddharth Tiwari was summoned and PW49 Sh.Siddharth Tiwari, who was working as Manager in Haryana State Cooperative Apex Bank Ltd.
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 132/248 had proved his letter dated 22.06.2009 Ex.PW49/3 (D-64) vide which he had handed over the Statement of Account, pertaining to account of accused to CBI. At page no.16 of Ex.PW49/3 (D-64), credit balance reflected on 31.03.2006 is Rs.1,92,616/-.
288. Since the Statement of Account annexed to Ex.PW49/3 (D-64) was not duly certified as per the Bankers' Book of Evidence Act, 1891 and the Indian Evidence Act, 1872, therefore, CBI had moved an application to lead legally admissible evidence and the said application was allowed vide order dated 09.02.2017. Thereafter, CBI had again summoned bank witness i.e. PW99 Sh.Kanwar Singh alongwith the duly certified Statement of Account.
289. PW99 Sh.Kanwar Singh, Accountant in Haryana State Cooperative Apex Bank Ltd., Chandigarh produced the account statement pertaining to Account No.18468 of the accused being maintained at Haryana State Cooperative Apex Bank Ltd., Chandigarh, which was exhibited as Ex.PW99/1 alongwith requisite certificates under Section 2(A) of the Bankers' Book of Evidence Act, 1891 Ex.PW99/5 and under Section 65B of the Indian Evidence Act, 1872 Ex.PW99/6. As per page no.16 of the Statement of Account Ex.PW99/1, credit balance in the account of accused on 31.03.2006 was Rs.1,92,616/-. Therefore, evidence of PW49 Sh.Siddharth Tiwari and PW99 Sh.Kanwar Singh also prove the entry no.10 of page no.2 of scrutiny report Ex.PW17/1 (D-61).
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290. With regard to entry no.11 mentioned at page no.2 of scrutiny report Ex.PW17/1 (D-61), concerned bank witness from Oriental Bank of Commerce, Rohtak i.e. PW16 Sh.Ramesh Chander, who was posted as Chief Manager, Oriental Bank of Commerce, Sirsa from October, 2005 till February, 2009 was summoned and PW16 Sh.Ramesh Chander had proved his letter dated 18.05.2006 Ex.PW16/1 (D-66). Vide this letter, he had produced the details of Term Deposit No.7420 in the name of Sneh Lata, wife of accused having original amount of Rs.2.70 Lacs and Term Deposit No. 7422, in the name of accused, having original amount of Rs.11.85 Lacs.
291. Although PW16 Sh.Ramesh Chander had also produced the copy of FDRs No.7420 and 7422, but since they were not accompanied with the relevant certificate, therefore, CBI had moved an application to lead legally admissible evidence and the said application was allowed vide order dated 09.02.2017. Thereafter, CBI had again summoned bank witness i.e. PW102 Sh.Surender Singh and he had deposed on oath that he was authorized by the Senior Branch Manager vide authority letter Ex.PW102/1 to produce the documents. Accordingly, he had produced the certificate under the Bankers' Book of Evidence Act, 1891 and under Section 65B of the Indian Evidence Act, 1872 which is Ex.PW102/2 and alongwith with the same, he had produced the duly certified copies of FDRs no. 7420 and 7422, which are part of Ex.PW102/3 (colly). From the same, it is proved on record that FDR Nos.7420 CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 134/248 and 7422 were in the names of wife of accused and accused respectively and the original amount of the FDR has been proved on record vide letter dated 18.05.2006 Ex.PW16/1 (D-66) i.e. of Rs.2.70 Lacs and 11.85 Lac respectively.
292. From the aforementioned discussion, it is proved on record that each and every credit entry, mentioned in all the bank accounts of accused and his wife, as mentioned in para 2 of the scrutiny report Ex.PW17/1 (D-61) have been proved on record by the CBI by summoning duly certified statement of accounts.
293. If the defence of accused was that he was not having amount of Rs.80,90,618/-in his bank account, then he would have produced various bank statements pertaining to his account in his defence evidence to prove that scrutiny report Ex.PW17/1 is based upon incorrect statement of account. However, no such evidence was led on record by accused in his defence and since the bank accounts and the various credit and debit entries, referred to in the scrutiny report Ex.PW17/1 (D-61) were not disputed by accused in the cross examination of PW17 Sh.B.K.Narang and PW90 Sh.Rakesh Kesar, therefore, there is no impediment in relying upon the scrutiny report Ex.PW17/1 (D-61) to come to a conclusion that accused was indeed having cash of Rs.80,90,618/-in his various bank accounts, during the check period.
294. Further, accused had also admitted that amount of Rs.80,90,618/- was lying in multiple bank accounts of CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 135/248 himself and that of his wife as on 30.05.2006 as per scrutiny report Ex.PW17/1 (D-61), when a specific question no. 61 in this regard was put to accused while being examined under Section 313 Cr.P.C. Therefore, the amount of Rs.80,90,618/-lying in the multiple bank accounts of accused and his wife cannot be decreased from the disproportionate assets of accused, as the said amount was acquired during the check period.
MOVABLE ASSET NO.2
295. With regard to movable asset no.2 of para 16.10.10 of the charge sheet, a search was conducted by the CBI at Teja Khera Farm House, Teja Khera, Sirsa jointly owned by accused and his son Abhay Singh Chautala and during the course of search, household items worth Rs.35,43,500/- (50% of the entire value) were found which were acquired by accused during the check period.
296. The relevant witnesses, examined by the CBI to prove the search and the articles found at Teja Khera Farm House were PW60 Sh.Rajesh Kumar, PW72 Sh.Virender Pal Singh Mann and PW85 IO Sh.Jagroop S.Gusinha.
Submissions of Ld.Defence Counsel and Ld.SPP for CBI
297. It was submitted by Ld.counsel for accused that value of the household articles worth Rs.35,43,500/- (50% of the entire value) has wrongly been shown to have been acquired by accused during the check period. It was CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 136/248 submitted that as per inventory list Ex.PW72/1 (D-7), the period of acquisition and the mode of acquisition has been left in blank, with regard to each and every household article. It was submitted that onus was upon the CBI to have shown as to on which date, the household articles were acquired and since the date of acquisition has not been mentioned, therefore, there is no evidence to show that household articles worth Rs.35,43,500/- (50% of the entire value) were acquired by accused during the check period.
298. It was further submitted that it is an admitted case of the CBI that Teja Khera farm house was in existence since 1960 onwards and, therefore, it is not believable that household articles found during the course of search were purchased during the check period and were not in existence prior to the check period. Therefore, it was for the CBI to have established by credible evidence that these articles were acquired during the course of check period, which they have failed to do so. It was further submitted that even the search, carried out at the Teja Khera farm house, is doubtful. It was submitted that one of the search witness i.e. PW60 Rajesh Kumar could not explain as to who was Dimple Rani, whose signatures were appearing on search list Ex.PW60/1 (D-7) and since it has also come in his cross examination that he had accompanied CBI in 2-3 other searches, therefore, he was a stock witness and was planted in this case, as a witness to the search proceedings. It was also submitted that even signatures of CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 137/248 Bhopal Singh, who was the caretaker of Teja Khera farm house, were not obtained on search list Ex.PW60/1, which also makes the search doubtful. Further, PW60 Rajesh Kumar has admitted in his cross-examination that no person from village Teja Khera was made to join the search at farm house, which also makes the search proceedings doubtful.
299. It was further submitted that no movement register was produced to show that PW60 Rajesh Kumar had left Delhi for Teja Khera, for the purpose of conducting search alongwith IO PW85 Sh. Jagroop S.Gusinha. It was concluded by submitting that in the present case, neither the search is proved nor it is proved that household articles worth Rs.35,43,500/- (50% of the entire value) were acquired by accused during the check period. Accordingly, it was prayed that amount of Rs.35,43,500/- (50% of the entire value) be decreased from the disproportionate assets.
300. On the other hand, it was submitted by Ld.SPP for CBI that search in this case, has been proved by PW60 Rajesh Kumar, who was an independent witness and also by PW72 Sh.Virender Pal Singh Mann, who was working as Inspector with CBI and had accompanied the IO PW85 Sh.Jagroop S.Gusinha for the purpose of search at Teja Khera farm house. It was submitted that search list Ex.PW60/1 is duly signed by Kanta Singh w/o of Abhay Singh Chautala, who is the son of accused and by PW60 Sh.Rajesh Kumar, who was an independent search witness. Therefore, search at Teja Khera farm house was duly CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 138/248 proved and the search list Ex.PW60/1 (D-7) proves the household articles found during search, at the Teja Khera farm house.
301. It was submitted that although inventory list Ex.PW72/1 (D-7) is silent with regard to the date of acquisition but this fact of acquisition of household goods was in the specific knowledge of accused. Therefore, onus was upon the accused to have explained the date of acquisition of household goods as per Section 106 of the Indian Evidence Act, 1872 and since accused did not offer any explanation or provided any evidence in the form of bills etc. to show that household articles, as per inventory list Ex.PW72/1 (D-7) were purchased prior to check period, therefore, it has to be presumed that same were purchased during the check period. Hence, the value of Rs.35,43,500/- (50% of the entire value) was rightly taken. Accordingly, a prayer was made to reject the arguments of the defence counsel.
FINDING
302. I have considered the rival submissions and have carefully perused the record and especially the evidence of PW60 Sh.Rajesh Kumar, PW72 Sh.Virender Pal Singh Mann and PW85 Sh.Jagroop S.Gusinha.
303. The search at Teja Khera farm house has been proved on record by the testimony of independent witness i.e. PW60 Sh.Rajesh Kumar, who was working with the MCD on the date of search i.e. 04.05.2006 and he has duly proved going to Sirsa, for the purpose of search at Teja CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 139/248 Khera farm house and has also proved his signatures appearing at point "R" on search list Ex.PW60/1 (D-7).
304. In his cross examination, PW60 Sh.Rajesh Kumar deposed that Bhopal Singh was one of the persons, who was found at Teja Khera farm house. The fact that Bhopal Singh was present at Teja Khera farm house is corroborated by the examination of Bhopal Singh as DW4 by accused. DW4 Sh.Bhopal Singh has deposed on oath that he was the caretaker at Teja Khera farm house since 1993 and CBI officials had visited the farm house and had prepared a list of various articles Ex.PW72/1 (D-7), which were found at the Teja Khera farm house but he had refused to sign the list.
305. In his cross examination by Ld.SPP for CBI, DW4 Sh.Bhopal Singh admitted that inventory of articles Ex.PW72/1 (D-7) was prepared, as per the articles found at the farm house by the CBI. DW4 Sh.Bhopal Singh also admitted, in his cross examination, regarding presence of Ms.Kanta Singh at farm house, when CBI officials had raided the same. The search list Ex.PW60/1 (D-7) has the signatures of Ms.Kanta Singh at point "K" and PW72 Sh.Virender Pal Singh Mann corroborated the said fact by deposing regarding taking signature of Ms.Kanta Singh at point "K" on Ex.PW60/1 (D-7) on the date of search. Therefore, the conduct of search and articles found during the course of search at Teja Khera farm house, not only stands proved by the prosecution witnesses i.e. PW60 Sh.Rajesh Kumar and PW72 Sh.Virender Pal Singh Mann CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 140/248 but also stands corroborated by the defence witness i.e. DW4 Sh.Bhopal Singh, who was the caretaker of Teja Khera farm house. Therefore, CBI had proved beyond reasonable doubt that during the course of search at Teja Khera farm house, household articles were found which were reduced into a search list vide Ex.PW60/1 (D-7) and the same was duly signed by PW60 Sh.Rajesh Kumar, who was the search witness and by Ms.Kanta Singh, who was the wife of son of accused i.e. Abhay Singh Chautala at point " K" on Ex.PW60/1 (D-7).
306. Now, the next question arises is whether the CBI had rightly taken into account the fact that household articles worth Rs.35,43,500/- (50% of the entire value) were acquired by accused during the check period or not?
307. In this context, I have carefully perused the inventory list Ex.PW72/1 (D-7) and against each household article, in the column of date of acquisition, it is mentioned " Not Known". Therefore, from the inventory list Ex.PW72/1 (D-7), it is not clear as to how the date of acquisition of household articles worth Rs.35,43,500/- (50% of the entire value) has been taken during the check period. It is only during the course of examination in chief of PW85 Sh.Sh.Jagroop S.Gusinha, who is the IO of this case, an explanation had come at page 5 of his examination in chief recorded on 23.05.2016 that value of household items as per inventory list Ex.PW72/1 (D-7) was taken to have been acquired during the check period as Teja Khera farm house was constructed during the course of check CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 141/248 period. This basis provided by the IO for taking the date of acquisition as the date of construction of the farm house during the check period, is not at all acceptable. The reason for the same is that it is an admitted case of the CBI, as per serial no. 5 and 6 of para 16.10.4 of the charge sheet that Teja Khera farm house was in existence from 1960 onwards and it was renovated in the year 2001-2002.
308. Further, as discussed hereinabove, I have already come to a conclusion that Teja Khera farm house was in existence since 1960 onwards and only renovation to the extent of shifting of staircase from front portion to backside and re-modelling of some windows was done in the year 2002. Therefore, it is not believable that Teja Khera farm house, which was in existence since 1960 onwards, which had an electricity connection since 1983 onwards and where the family of accused was staying as per testimony of PW79 Sh.Ranjit Singh, will not have any household articles in the form of refrigerator, air conditioner, washing machine, T.V., furniture like double bed etc. Therefore, it was incumbent upon the CBI to have led positive evidence on record to show that household articles vide Ex.PW72/1 (D-7) were purchased during the check period.
309. It was easy for the CBI to have found out from the manufacturer by providing model and serial number of electronic items like T.V., refrigerator, washing machine etc., mentioned in the inventory list Ex.PW72/1 (D-7) as to when that product was introduced in the Indian market to CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 142/248 come to a definite conclusion that they were acquired during the check period. However, in absence of any such evidence and having regard to the fact that farm house was in existence prior to the check period, it is difficult to believe that all the household articles mentioned in the inventory list Ex.PW72/1 (D-7) were acquired during the course of check period. Hence, CBI has failed to prove that household articles, as per inventory list Ex.PW72/1 (D-7) were acquired by accused to the tune of Rs.35,43,500/- (50% of the entire value) during the check period. Hence, the said amount is required to be decreased from the disproportionate assets.
MOVABLE ASSETS NO. 3 AND 4310. As per para 16.10.10 of the charge sheet, it is alleged by the CBI that during the check period, accused had acquired jewellery items worth Rs.34,30,000/- and the value of claims/interest was to the tune of Rs.65,33,800/- and the said value was arrived at, on the basis of Nomination Form filed by accused at the time of Haryana Vidhan Sabha Election, 2005.
311. To prove the aforementioned allegations, the CBI had examined PW3 Sh.Munish Kumar, Asstt.District Attorney, Sirsa, Haryana, who had proved the Nomination Form alongwith affidavit (Form-26) filed by accused for election to Haryana Vidhan Sabha from Rori constituency and the said affidavit is part of D-48.
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 143/248 Submissions of Ld.Defence Counsel and Ld.SPP for CBI
312. It was submitted during the course of final arguments by Ld.defence counsel that the affidavit Ex.PW3/2 (D-48) is not admissible in evidence as the same was filed under the Representation of People Act, 1951, for the purpose of election to Haryana Vidhan Sabha. It was further submitted that even assuming that the affidavit Ex.PW3/2 (D-48) is admissible, then also the value of the jewellery taken to be Rs.34,30,000/- is required to be decreased. It was submitted in this regard that in the affidavit Ex.PW3/2 (D-48), accused had declared jewellery owned by his wife, which was her stridhan acquired prior to check period. Therefore, the same was wrongly shown to have been acquired by accused during the check period. In this regard, Ld.Defence counsel had referred to the cross-examination of PW86 Sh.Rahul Bishnoi recorded on 31.03.2016, wherein he admitted that details of jewellery mentioned of Smt.Sneh Lata, wife of accused in the affidavit Ex.PW3/2 (D-48), copy of which was Mark PW3/A (colly) (D-24), to be her stridhan and the jewellery which was shown to be that of Om Prakash (HUF) was received by him, on the occasion of his marriage from his family members. It was further submitted that the Ld.SPP for CBI had not re- examined the said witness on this aspect and, therefore, this fact stands proved on record that jewellery was of pre-
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 144/248 check period and the amount of jewellery of Rs.34,30,000/- is required to be decreased from the disproportionate assets.
313. It was further submitted that market value of the jewellery was declared by accused in his affidavit Ex.PW3/2 (D-48) and the acquisition value was much more less. Lastly, it was submitted that the IO PW85 Sh.Jagroop S.Gusinha, in his cross-examination, had admitted that he had not seen any jewellery during the course of search. Therefore, even the CBI had failed to prove that any jewellery was owned by accused or that the jewellery was to the tune of Rs.34,30,000/- in the year 2005 when the affidavit Ex.PW3/2 (D-48) came to be filed. Accordingly, it was prayed that amount of jewellery to the tune of Rs.34,30,000/- be decreased from the disproportionate assets.
314. It was further submitted that the amount of claim/interest shown as Rs.65,33,800/-is also required to be decreased, as the affidavit itself is inadmissible in evidence. Secondly, it was submitted that in the cross examination of PW86 Sh.Rahul Bishnoi recorded on 18.03.2016, PW86 Sh.Rahul Bishnoi was shown the document Ex.PW86/D-2 (D-31), which is the copy of affidavit, which was exhibited as Ex.PW3/2 (D-48) and after seeing the same, it was deposed by PW86 Sh.Rahul Bishnoi that amount of Rs.14.60 Lacs was to be received by accused and the said amount was received by accused prior to 31.03.2005 and similarly, amount of CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 145/248 Rs.36,73,800/- was to be received by wife of accused and this amount was also received by her prior to 31.03.2005. It was submitted in this regard that both these amounts were due and payable to accused and his wife, on account of sale of oranges, by the purchasers but since the same was not paid, at the time of purchase, hence, it was shown as a pending claim. Accordingly, it was prayed that the said amount of claim/interest as mentioned in the affidavit Ex.PW3/2 (D-48) referred to as Ex.PW86/D-2 (D-31) in the evidence of PW86 Sh.Rahul Bishnoi, be also decreased. Accordingly, a prayer was made to decrease the value of jewellery of Rs.34,30,000/-and value of claim/interest of Rs.65,33,800/- from the disproportionate assets.
315. On the other hand, it was submitted by Ld.SPP for CBI that there is no law, which makes the affidavit Ex.PW3/2 (D-48) filed alongwith the Nomination Paper, during the Haryana Vidhan Sabha Election in 2005, to be inadmissible in evidence. It was further submitted that affidavit Ex.PW3/2 (D-48) was proved on record by PW3 Sh.Munish Kumar, Asstt.District Attorney, Sirsa, Haryana, who had produced the original of the affidavit Ex.PW3/2 (D-48) in his cross-examination. It was further submitted that as per affidavit filed by accused Ex.PW3/2 (D-48), he had himself declared the value of jewellery to be Rs.34,30,000/- belonging to him and his wife and Om Parkash (HUF) and also the value of claims/interest amounting to Rs.65,33,800/- belonging to himself, his wife CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 146/248 and Om Parkash (HUF). It was further submitted that since the affidavit was filed in the year 2005 i.e. within the check period, therefore, the onus was upon the accused to have explained that the jewellery mentioned in the affidavit Ex.PW3/2 (D-48) was in his possession prior to check period. However, no evidence was led on record, in the form of bills or by examining his wife or the parents of the wife to show that jewellery mentioned in the affidavit Ex.PW3/2 (D-48) was given as gift to the wife of accused, prior to the check period. Similarly, with regard to claims/interest of Rs.65,33,800/- there was no evidence led on record by accused to show that the said value of claims/interest also pertain to the period prior to check period.
316. Ld.SPP for CBI has further submitted that PW86 Sh.Rahul Bishnoi had deposed on oath, in his examination- in-chief that he was the Chartered Accountant by profession and was known to the family of accused for the past 20 years and was providing professional services to the family of accused since 2001. Therefore, whatever questions were put to him by Ld.Defence counsel, in his cross-examination, were answered in affirmative by the said witness. It was further submitted that since PW86 Sh.Rahul Bishnoi was an interested witness, therefore, his admission made in the cross-examination, with regard to jewellery and claim/interest cannot be relied upon.
317. It was further submitted that during the course of re- examination of PW86 Sh.Rahul Bishnoi by Ld.SPP for CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 147/248 CBI, PW86 Sh.Rahul Bishnoi submitted that he cannot tell whatsoever gift was received in the Chautala family i.e. either by accused or his wife. It was further submitted that, with regard to deposition made by PW86 Sh.Rahul Bishnoi, that amount of Rs.14.60 Lacs and Rs.36,73,800/- were the claims of accused and his wife, due and payable by other persons, on account of sale of oranges, is required to be rejected as PW86 Sh.Rahul Bishnoi has nowhere deposed the names of persons to whom the oranges were sold and when the amount was returned and the manner in which the amount was returned i.e. whether by cash or by cheque. Therefore, the evidence of PW86 Sh.Rahul Bishnoi nowhere proves that the claim was made by accused with regard to sale of oranges on credit basis. Therefore, CBI had rightly taken the value of jewellery and claims/interest, as mentioned in the affidavit of accused Ex.PW3/2 (D-48) to have been acquired during the check period. Accordingly, a prayer was made to reject this contention.
FINDING
318. To appreciate the contention of the respective counsels, I have carefully perused the evidence of PW3 Sh.Munish Kumar, Asstt.District Attorney, Sirsa, Haryana, document D-48 as well as the explanation given by accused during the course of his examination under Section 313 Cr.P.C.
319. As per the evidence of PW3 Sh.Munish Kumar, he was posted as Asstt.District Attorney, Sirsa, Haryana and CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 148/248 he was assigned the duty to function in the DC office/court presided by Deputy Commissioner, Sirsa. He had deposed that accused had furnished Form-26 and the affidavit, both dated 17.01.2005 before the Returning Officer, for election to Haryana Vidhan Sabha from Rori Constituency. The copy of Form-26 was exhibited as Ex.PW3/1 and the copy of affidavit, furnishing the details of movable and immovable assets of accused, his wife and the (HUF) was exhibited as Ex.PW3/2. It was in his cross-examination that PW3 Sh.Munish Kumar had produced the original of Ex.PW3/1 and Ex.PW3/2. Therefore, by producing the originals of Ex.PW3/1 and Ex.PW3/2 (D-48), it was proved on record that accused had filed Form-26 Ex.PW3/1 and affidavit of assets i.e. Ex.PW3/2 before the Returning Officer, at the time of Haryana Vidhan Sabha Election from Rori constituency.
320. The filing of affidavits Ex.PW3/1 and Ex.PW3/2 was also admitted by accused in answer to question nos. 45, 221 and 222 of his examination under Section 313 Cr.P.C.
321. The contention of Ld.counsel for accused that the affidavits Ex.PW3/1 and Ex.PW3/2 (D-48) are inadmissible in evidence, as the same were filed under the Representation of People Act, 1951, is required to be rejected as there is no provision in the Representation of People Act, 1951 that affidavit furnishing assets, cannot be used in any judicial proceedings. Therefore, the affidavits Ex.PW3/1 and Ex.PW3/2 (D-48) are admissible in CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 149/248 evidence and contention of Ld.Defence counsel is accordingly, rejected.
322. In the affidavit Ex.PW3/2 (D-48), accused had provided the details of movable and immovable assets, owned by him, his wife and his HUF. Regarding the jewellery, it was disclosed in the affidavit Ex.PW3/2 that accused was having Silver jewellery worth Rs.1,00,000/-, Gold Jewellery worth Rs.3,60,000/- and Diamond jewellery worth Rs. 4,00,000/- whereas it was disclosed in the affidavit that his wife was having Silver jewellery worth Rs.1,50,000/-, Gold Jewellery worth Rs.5,00,000/- and Diamond jewellery worth Rs.8,00,000/- and Om Prakash (HUF) was having Silver jewellery to the tune of Rs.80,000/-, Gold Jewellery to the tune of Rs.2,40,000/- and Diamond jewellery to the tune of Rs.8,00,000/-. If the jewellery owned by accused, his wife and HUF is added, then it comes to Rs. 34,30,000/- that is the exact amount, which is mentioned in the charge sheet. No evidence was led on record by accused to show that said jewellery was purchased by accused or his wife prior to check period or the same was stridhan of his wife, prior to the check period.
323. The contention of Ld.counsel for accused that jewellery items were of pre-check period, as per evidence of PW86 Sh.Rahul Bishnoi, is required to be rejected. The reason for the same is that PW86 Sh.Rahul Bishnoi was the Chartered Accountant of accused and was known to the family of accused for the past 20 years. Therefore, PW86 CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 150/248 Sh.Rahul Bishnoi had an interest to admit all those facts, which were put to him by Ld.defence counsel, which favoured the accused. Nothing has been brought out in the cross-examination of PW86 Sh.Rahul Bishnoi as to on what basis, he had deposed that jewellery of wife of accused is her stridhan and jewellery of accused was given to him, at the time of his marriage. It has nowhere come in the evidence of PW86 Sh.Rahul Bishnoi that he had attended the marriage of accused and that is why he can depose confidently that the jewellery was received, at the time of marriage.
324. The best person, who could have explained regarding the period of acquisition of jewellery was the accused or his wife. However, accused had not stepped into the witness box nor had summoned his wife to depose as a witness. Further, accused was examined under Section 313 Cr.P.C. and incriminating evidence, coming on record, with regard to jewellery was put to him vide question nos.64, 65, 221 and 222 and in answer to the same, accused had nowhere taken a defence that jewellery pertaining to him and his wife, was received by them, at the time of their marriage and was acquired during the pre- check period.
325. On the contrary, accused had provided an explanation that price of the jewellery was mentioned, as per the market rate and not as per the cost of acquisition. The explanation provided by accused that jewellery was acquired shows that the same was purchased and it was not CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 151/248 a gift to him or his wife, at the time of their marriage, as deposed by PW86 Sh.Rahul Bishnoi. Further, the cost of acquisition of jewellery was nowhere proved on record by producing any bills by accused to show that cost of acquisition was far less than what was disclosed in the affidavit Ex.PW3/2 or that the jewellery was purchased prior to the check period. Therefore, as per the affidavit of accused Ex.PW3/2 (D-48), the value of the jewellery has to be taken as Rs.34,30,000/- since the same was acquired during the course of check period.
326. Further, with regard to value of claim/interest, as per affidavit Ex.PW3/2 (D-48), accused had shown value of claim/interest pertaining to himself to be Rs.14,60,000/-, pertaining to his wife to be Rs.36,73,800/- and pertaining to HUF to be Rs.14,00,000/-. If the value of claim/interest of accused, his wife and HUF are added, the same comes to Rs.65,33,800/-, that is the exact amount, which is shown in the charge sheet.
327. With regard to claim/interest, mentioned in the affidavit Ex.PW3/2 (D-48), although PW86 Sh.Rahul Bishnoi had deposed that claim of Rs.14.60 Lacs was to be received by accused and Rs. 36,73,800/- was to be received by wife of accused and the same was in fact received by both of them prior to 31.03.2005 but from the testimony of PW86 Sh.Rahul Bishnoi, it has nowhere come on record that said amount was due to accused and his wife, on account of sale of oranges, as contended by Ld.Defence counsel, during the course of arguments.
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 152/248
328. Further, in the entire evidence of PW86 Sh.Rahul Bishnoi, he has nowhere deposed about the name of the person from whom the said amount was due and payable on account of sale of oranges and neither, he had provided the date on which the amount was returned and the mode of returning i.e. whether by cash or by cheque nor he had anywhere deposed that the said amount was due and payable, on account of sale of oranges. Therefore, the testimony of PW86 Sh.Rahul Bishnoi nowhere proves that amount claimed of Rs.14.60 Lacs and Rs.36,73,800/- mentioned in affidavit Ex.PW3/2 (D-48) was on account of sale of oranges on credit by accused and his wife.
329. Even accused, while being examined under Section 313 Cr.P.C. did not take up any such defence or offered any kind of explanation when this amount regarding claim/interest of Rs.65,33,800/- as mentioned in Ex.PW3/2 (D-48) was put to him vide question nos.66, 221 and 222. Accused nowhere took up the defence that the amount was due and payable from the person to whom the oranges were sold and that is why this amount was shown as claim in the affidavit Ex.PW3/2. Therefore, this fact was nowhere proved that the said amounts were due and payable to accused and his wife, on account of sale of oranges. The contention of Ld.defence counsel is accordingly, rejected.
330. In the light of evidence, as discussed hereinabove and the affidavits Ex.PW3/1 and Ex.PW3/2 (D-48), the CBI had proved on record that accused had acquired CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 153/248 movable assets, in the form of jewellery and claim/interest to the tune of Rs.99,63,800/-during the check period.
MOVABLE ASSET NO. 5: MERCEDES CAR
331. As per para 16.10.10 of the charge sheet, it is alleged by the CBI that accused had acquired movable asset i.e. a Mercedes Benz car bearing Registration No. HR-22 D 4977, in the year 2005, for Rs.35,00,000/-, in the name of his wife Sneh Lata, after having purchased the said car from M/s.Tai Pan Traders Ltd., Ludhiana.
Submissions of Ld.Defence Counsel and Ld.SPP for CBI
332. It was submitted by Ld.defence counsel that it is admitted that Mercedes Benz car bearing Registration No. HR-22 D 4977 was purchased by wife of accused. However, it is incorrect that the same was purchased for Rs.35,00,000/- and as per evidence led on record by the prosecution, in the form of car invoice, the purchase price of the car is Rs.40,73,095/- only. It was further submitted that the car was purchased by the wife of accused, from her own funds and it is an admitted case of the CBI that wife of accused had taken a car loan of Rs.15,00,000/- from the State Bank of India, Mandi Dabwali, Sirsa and the balance payment of Rs.25,96,475/- was paid from the account of wife of accused from SBI, Branch Chautala, CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 154/248 Haryana.
333. It was further submitted that as per own case set up by the CBI, wife of accused was having a lawful income of more than Rs.7 Lac per year from the Financial Year 1999- 2000 till Financial Year 2005-2006 and the total income of wife of accused was Rs.45,21,283/- between the period from 1999-2006. It was further submitted that wife of accused had the income from agriculture and bank interest, as reflected in her income tax returns, which have been brought on record by the CBI. It was further submitted that CBI has also produced on record the revenue record to show that wife of accused was the owner of around 25 acres of irrigated land at village Teja Khera, village Chautala and at village Lambi, District Sirsa. Therefore, it is not the case of the CBI that although wife of accused has shown her income from agriculture but she was not having any agricultural land to derive such income.
334. Further, bank records have also been proved on record by the CBI, which show that wife of accused was earning bank interest. Therefore, from own documents, filed on record by the CBI, it was proved on record that wife of accused was having lawful income from agriculture and bank interest for which she was filing her income tax returns from 1999 onwards. Further, wife of accused had lawful income of around Rs.45,21,283/- at the end of Financial Year 2005-2006 and hence, she could have purchased the Mercedes Benz car bearing Registration No. HR-22 D 4977 for Rs.40,00,000/-. It was CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 155/248 further submitted that it is a settled principle of law that if family member of accused has purchased an asset out of his or her own lawful income, then value of the said movable asset cannot be shown to have been acquired by accused and such movable asset is required to be decreased from the disproportionate assets. Accordingly, a prayer was made to decrease the value of Mercedes Benz car bearing Registration No. HR-22 D 4977 from the list of movable articles alleged to have been acquired by accused during the check period.
335. On the other hand, it was submitted by Ld.SPP for CBI that Smt.Sneh Lata, wife of accused was unemployed and although she has shown income from agriculture in her income tax returns but the said income was nowhere proved on record. It was further submitted that although it is true that wife of accused was having agricultural land of around 25 acres at village Teja Khera, Village Chatuala and village Lambi, District Sirsa but there is no evidence led on record by accused to show that any crop etc. was being sown on the aforesaid land and the same was generating agriculture income. It was further submitted that since wife of accused was not having any income, therefore, CBI has rightly shown the movable asset i.e. car to have been purchased by accused in the name of his wife. Accordingly, a prayer was made to reject this contention.
FINDING
336. I have considered the respective submissions of Ld. CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 156/248 respective counsels and have carefully perused the evidence, which has come on record, with regard to Mercedes Benz Car bearing registration no. HR 22 D 4977.
337. In the present case, it is proved on record that car bearing Registration No. HR-22 D 4977 was registered with Registering Authority Fatehabad, Haryana by the evidence of PW63 Sh.Yogesh Mehto. PW63 Sh.Yogesh Mehto was posted as Sub-Divisional Officer, Fatehabad, Haryana in the year 2006 and he proved the letter dated 10.06.2006 addressed by Satbir Singh, working as Assistant Superintendent in the office of SDO of Fatehabad, Haryana and the same was exhibited as Ex.PW63/1 (AD-87) and he produced Form 6 Register, with regard to maintenance of record of Motor Vehicles and the same was exhibited as Ex.PW63/3 and as per the same, the vehicle was registered in the name of Smt.Sneh Lata on 20.09.2005 and it also had an endorsement of hypothecation in favour of State Bank of India.
338. Further, document AD-87 also contains the sale certificate and the invoice issued by M/s.Tai Pan Traders Ltd., Ludhiana in favour of Smt.Sneh Lata. The invoice favouring Smt.Sneh Lata is Ex.PW85/47 and the sale certificate is Ex.PW85/49 (AD-87).
339. Further, as per invoice Ex.PW85/47 (AD-87), the total cost price of the Mercedes Benz Car bearing Registration No. HR-22 D 4977 has been shown as 40,73,095/-. Therefore, from the invoice, sale certificate CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 157/248 and the evidence of PW63 Sh.Yogesh Mehto, it is proved on record that Mercedes Benz Car bearing Registration No. HR-22 D 4977 was purchased by Sneh Lata and was also registered in her name.
340. The payment for the aforementioned car has been made by Sneh Lata and the same stands proved on record by the evidence of PW66 Sh.Sham Sunder Chauhan, who was the Branch Manager of SBI, Branch Chautala, Distt.Sirsa, Haryana. As per evidence of PW66 Sh.Sham Sunder Chauhan, Smt.Sneh Lata was having an account at SBI, village Chautala, Haryana and he also produced on record a debit voucher Ex.PW66/7 (D-71). As per debit voucher Ex.PW66/7 (D-71), a payment of Rs.25,96,475/- has been debited as margin money for car loan. The said entry of debit dated 17.08.2005 is also reflected at page no.12 of the Statement of Account attached with Ex.PW69/1 (D-65).
341. It is also proved on record that Smt.Sneh Lata had taken loan of Rs.15,00,000/- from SBI, Mandi Dabwali, Haryana vide Statement of Account Ex.PW85/53 (Colly) (D-69) having entry at point "X1". IO PW85 Sh.Jagroop S.Gusinha has also referred to the abovementioned documents regarding debit voucher and Statement of Account showing the payment of car in his evidence recorded on 23.05.2016 and 24.05.2016. Therefore, it is proved on record that the entire payment of around Rs.40,73,095/- for purchase of car bearing registration no. HR 22-D-4977 was paid by Smt.Sneh Lata, wife of CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 158/248 accused.
342. Now, the next question arises is whether the wife of accused was having any lawful income to purchase the Mercedes Benz Car bearing Registration No. HR-22 D 4977 or not?
343. In this regard, evidence of PW33 Sh.Sanjeev Minocha and income tax returns of wife of accused are relevant. The CBI had examined PW33 Sh.Sanjeev Minocha, who was posted as Assistant Commissioner of Income-Tax, Central Circle-2, Chandigarh in February, 2008 and he had proved the handing over of income tax returns of Smt.Sneh Lata, wife of accused to the SP, CBI vide his letter dated 07.02.2008 Ex.PW33/1 (Part of D-33). He further deposed on oath that he had handed over the copy after comparing the original and all copies bear his signatures at point "X" as token of having compared the copies with the original. The income tax returns of Smt.Sneh Lata, wife of accused for the Financial Year 1999-2000, 2000-2001, 2001-2002, 2004-2005 and 2005- 2006 were relied upon by the IO PW85 Sh.Jagroop S.Gusinha, in his evidence and the same are exhibited as Ex.PW85/72 to PW85/81 ( Part of D-35). As per income tax returns, the income of Smt.Sneh Lata, wife of accused for the relevant Financial Years was as follows:-
Financial Income Interest Total (Rs.) Year from from Agriculture Bank (Rs.) (Rs.) 1999- 6,75,000/- 67,408/- 7,42,408/-2000
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 159/248 2000- 7,08,000/- 79,286/- 7,87,286/-2001
2001- 7,86,000/- 82,831/- 8,68,831/-2002
2004- 7,10,000/- 1,39,280/- 8,49,280/-2005
2005- 8,80,000/- 1,03,478/- 9,83,478/-2006
Dairy 2,90,000/- --- 2,90,000/-
Income
(2005-
2006)
Total 40,49,000/- 4,72,283/- 45,21,283/-
344. In the aforementioned income of Rs. 45,21,283/-, loan of Rs.15,00,000/- taken by wife of accused is also required to be added. Therefore, total gross income of wife of accused was Rs.60,21,283/- during the period from 1999-2006.
345. The expenditure incurred by Smt.Sneh Lata, wife of accused, during the check period, on account of insurance of the car, income tax paid, repayment of car loan, salary, air ticket has been detailed out in para 10.12 of the charge sheet and it comes to Rs.17,85,691/-. Therefore, after deducting the aforementioned expenditure from gross income, net income of wife of accused was (Rs.60,21,283/- minus Rs.17,85,691/- = Rs.42,35,592/-.
346. Further, it is not the case of the CBI that Smt.Sneh Lata had no agricultural land from which she could have generated agriculture income and agriculture income reflected in the income tax returns was a fraudulent one.
On the contrary, as per evidence brought on record by the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 160/248 CBI, Smt.Sneh Lata, wife of accused did have agricultural land in village Teja Khera, Chautala and village Lambi. In this regard, evidence of PW40 Sh.Madan Lal, PW45 Sh.Balwant Rai and PW46 Sh.Subhash Chander are relevant, who were revenue officials and had produced the revenue record of respective villages. PW40 Sh.Madan Lal. was working as Patwari, Village Teja Khera, Tehsil Dabwali, Distt.Sirsa, Haryana and he had provided the revenue record of village Teja Khera vide letter dated 29.03.2007 Ex.PW40/A (D-28) alongwith mauka report (inspection report) Ex.PW85/7. As per revenue record produced by PW40 Sh.Madan Lal, Smt.Sneh Lata ( also known by the name of Kesar Devi) was having land of 107 Kanal and 19 Marla.
347. Similarly, PW45 Sh.Balwant Rai, Patwari of village Chautala-I, Tehsil Dabwali, Sirsa, Haryana, had produced the File D-19 regarding the land standing in the name of Smt.Sneh Lata. PW45 Sh.Balwant Rai admitted in his cross-examination that accused and his wife had got 139 Kanal and 2 Marla as per letter dated 18.09.2008 Ex.PW45/1 (D-19). The exact land coming into the share of Smt.Sneh Lata was not clarified by the said witness but as per the charge sheet, the total ownership of Smt.Sneh Lata was 69 Kanal and 11 Marla of village Chautala, Sirsa, which she got in 1997. This fact was confirmed by IO PW 85 Sh.Jagroop S.Gusinha, in his evidence recorded on 06.02.2016.
348. Lastly, PW46 Sh.Subhash Chander, Patwari from CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 161/248 Village Lambi, Tehsil Dabwali, Distt.Sirsa, Haryana had produced revenue record of village Lambi vide document D-27. As per Nakal Jamabandi Ex.PW46/5 at page no. 19, land measuring 4 Kanal falling in Khasra No. 78/8 have been shown to have owned by Smt.Sneh Lata ( also referred to as Kesar Devi), wife of accused and also in the Mauka Report (Inspection Report) Ex.PW46/4 ( Part of D-
27). Therefore, the aforementioned revenue witnesses have proved on record that land owned by Smt.Sneh Lata (also referred to as Kesar Devi) in village Teja Khera, Chautala and village Lambi, District Sirsa, Haryana was as follows:--
107 + 69 + 4 = 180 Kanal
349. In one acre of land, there are 8 Kanals. Therefore, 180 Kanal translates roughly into 23 acres of agricultural land.
350. It is not the case of the CBI that Smt.Sneh Lata despite having agricultural land, was not having any agriculture income and she had wrongly shown agriculture income in her income tax returns. Therefore, from the evidence led on record by the CBI itself, it has come on record that Smt.Sneh Lata, wife of accused, had the basis i.e. ownership of agricultural land of around 23 acres to claim agriculture income in her income tax returns and it cannot be said that income reflected by Smt.Sneh Lata in her income tax returns, was not her income but that of accused.
351. Further, as discussed hereinabove, net income of CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 162/248 Smt.Sneh Lata was to the tune of Rs.42,35,592/- including bank loan of Rs.15,00,000/-. Therefore, the said net income was sufficient for Smt.Sneh Lata to have purchased the Mercedes Benz Car bearing Registration No. HR 22 D 4977 for Rs.40,73,095/- on 20.09.2005.
352. It is also a settled principle of law that if a family member of accused is having independent lawful income, then any asset acquired by this family member, cannot be clubbed with the assets of accused in a disproportionate assets case. Therefore, CBI had wrongly shown that accused had acquired Mercedes Benz Car bearing Registration No. HR 22 D 4977, in the name of his wife during the check period. Hence, cost of acquisition of Mercedes Benz Car bearing Registration No. HR 22 D 4977 is required to be decreased from disproportionate assets.
CONCLUSION
353. In the light of aforementioned discussion with regard to each movable asset, the CBI has been able to prove the acquisition of following movable assets during the check period by the accused:
S.No. As per charge As per evidence
sheet (Rs.) (Rs.)
1. Cash 80,90,618 80,90,618
2. Household 35,43,500 Nil
articles
3. Jewellery items as 34,30,000
per declaration
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 163/248
filed by
Sh.O.P.Chautala
during 2005 plus
99,63,800/-
And
Other movable 65,33,800.
4. assets viz values
of claims/interests = 99,63,800/-
as declared during
2005 as per
declaration filed
to Election
Commission by
Sh.O.P.Chautala
5. Mercedes 35,00,000 Nil
Total 2,50,97,918 1,80,54,418
STATEMENT "C"
INCOME OF ACCUSED AND HIS WIFE
354. As per para 10.11 of Statement "C" of the charge sheet, income of accused and his wife, during the check period, has been taken from salary, rent, bank interest, car loan, agriculture income and business income as shown by them in their income tax returns. The total income of accused and his wife including loan during the check period, as per charge sheet was Rs.3,22,43,660/-.
Submissions of Ld.Defence Counsel and Ld.SPP for CBI.
355. During the course of arguments, it was submitted by Ld.defence counsel that apart from the income shown by the CBI in para 10.11 of the charge sheet, which also stands proved on record by the various income tax returns CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 164/248 of accused and his wife, which are part of D-33 to D-35 and also by the salary details of accused, obtained from the Haryana Legislative Assembly, which is Ex.PW85/54 (colly) (part of D-23), there was other income of accused, which was not taken into account by the CBI.
356. It was submitted by Ld.counsel for accused that no income tax returns were filed by accused and his wife from the Financial Year 1992-1993 till Financial Year 1998- 1999 as agriculture income is exempt from income tax. However, accused can still show that he had lawful source of income from agriculture and dairy business. It was further submitted that no income has been shown by the CBI in the pre-check period.
357. It was further submitted that prior to this FIR, one more FIR No. 34/97 PS Dabwali, Haryana was registered against accused for disproportionate assets wherein police after investigation, had filed a cancellation report. It was further submitted that although police file having the cancellation report was received by the IO but the same was not made part of the charge sheet and during the course of cross examination of IO PW85 Sh.Jagroop S.Gusinha, the police file was put to him and he admitted the same to have been received by him and the same was accordingly exhibited as Ex.PW85/DA-3 (AD-93). It was further submitted that cancellation report dated 30.11.1999 Ex.DW22/A (AD-93) was proved on record by defence witness i.e. DW22 Ram Kishore, who was the IO of FIR No. 34/97 PS Sadar Dabwali registered under Section CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 165/248 13(1)(d) and (e) of the PC Act. It was further submitted that it has come in his evidence that closure report was accepted vide order dated 03.05.1997 of the Ld.Special Judge, Sirsa and thereafter, the appeal filed before the Hon'ble High Court of Chandigarh and the Hon'ble Supreme Court of India was also dismissed. It was further submitted that as per cancellation report Ex.DW22/A, at pages 428 and 429, it was mentioned by the IO that accused and his wife had 430 Kanal and 10 Marla of land, on which there was an orchard and accused's agriculture income was about Rs.20 Lacs per year and therefore, no case for disproportionate assets was made out against the accused.
358. It was further submitted that said cancellation report Ex.DW22/A was accepted by the Ld.Special Judge, Sirsa meaning thereby that agriculture income of Rs.20 Lacs per year of accused was accepted to be correct. However, said agriculture income has not been taken into account by the IO PW85 Sh.Jagroop S.Gusinha, despite having knowledge about the cancellation report Ex.DW22/A.
359. It was further submitted that it is an admitted case of the CBI that accused had agricultural land at village Shamshabad, Tehsil Sirsa, at village Teja Khera, Tehsil Dabwali, Distt.Sirsa and at village Chautala, Distt.Sirsa. Further, wife of accused also had agricultural land at village Teja Khera, village Chautala and village Lambi, District Sirsa, Haryana and the total agricultural land, which was owned and possessed by accused was around CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 166/248 41 acres and that in possession of wife of accused was around 23 acres. It was further submitted that land owned by accused and his wife was irrigated land. Further, as per Khasra Girdavari (record of cultivation of crops), it is shown that at village Teja Khera, Sirsa there was an orchard. It was further submitted that income arising from Orchard and from the agricultural produce was not taken into account by the CBI, either during the check period or during the pre-check period.
360. It was further submitted that there was a cattle shed at Teja Khera Farm House, Sirsa and from the dairy business, accused was having income, which was not taken into account by the IO PW85 Sh.Jagroop S.Gusinha.
361. It was further submitted that accused was not required to prove on record, beyond reasonable doubt his income from agriculture and dairy business and it was sufficient for the accused to have proved on record, on the preponderance of probability, that he had income from agriculture and dairy business, which onus accused had discharged by showing possession of agricultural land and the existence of cattle shed at Teja Khera Farm House, which is also not disputed by the CBI in the charge sheet.
362. It was further submitted that PW86 Sh.Rahul Bishnoi, who was the Chartered Accountant of accused, had furnished the details of the income prior to 1999 vide letter dated 01.04.2008 Ex.PW86/DX-15. In the said letter Ex.PW86/DX-15, PW86 Sh.Rahul Bishnoi had provided the details of agriculture income from kinoo (oranges) CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 167/248 Orchard, details of rent from Flat at B-601, Gauri Sadan, 5, Hailey Road, New Delhi from February, 1998 till March, 1999 and deposits received from CRB capital till 1996, interest income and dairy income of wife of accused from 1991 till 1999. However, the CBI had not taken into account all the aforesaid incomes, despite having knowledge about the same. It was further submitted that when Ex.PW86/DX-15 (colly) was tendered in the cross examination of PW86 Sh.Rahul Bishnoi, Ld.SPP for CBI had objected to the same, on the ground of same being not part of the court record, documents being photocopies and not supplied in advance to the Ld.SPP for CBI. However, the objection taken by the Ld.SPP for CBI is required to be over-ruled, as in the cross examination of PW85 Sh.Jagroop S.Gusinha recorded on 15.11.2016, IO PW85 Sh.Jagroop S.Gusinha had admitted that Sh.Rahul Bishnoi had made available to him the copies of various documents (which are part of D-31 and D-32) on different dates including the date of 01.02.2008 and 02.04.2008. Therefore, IO PW85 Sh.Jagroop S.Gusinha had admitted that he had received documents apart from documents contained in D-31 and D-32. It was further submitted that initially Ex.PW86/DX-15 was not brought on record by the CBI and thereafter, said document was brought in the cross examination of PW86 Sh.Rahul Bishnoi. Accordingly, it was prayed that the dairy and orchard income, as mentioned in the document Ex.PW86/DX-15, be taken into account for the period prior to 1999 and if the same is CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 168/248 taken into account, then accused would have sufficiently explained that he had lawful income to own assets and his income was not disproportionate to his assets.
363. It was further submitted that accused was the owner of Flat B-601, Gauri Sadan, 5, Hailey Road, New Delhi and the same was given on rent to Association of Basic Telecom Operators, at a monthly rent of Rs.90,000/- per month w.e.f. 01.02.1998. It was further submitted that although CBI has taken into account the rent received by accused for the aforementioned property vide income tax returns, filed for the Financial Year 1999-2000 onwards, but rental income for the period from February, 1998 till March, 1999 was not taken into account, as for this Financial Year, no income tax return was filed by the accused. It was further submitted that even though accused had not filed the income tax return but still lawful rental income should have been taken into account.
364. It was further submitted that CBI had summoned PW8 Sh.S.C.Khanna, Secretary General of Association of Basic Telecom Operators, whose part examination in chief was recorded on 29.05.2012 but thereafter, on the pretext of showing some documents to PW8 Sh.S.C.Khanna, adjournment was sought by Ld.SPP for CBI but thereafter, he was never summoned as a witness, in this case. Thereafter, vide order dated 16.01.2019, directions were passed to CBI to bring on record the documents referred in the letter dated 19.07.2006, reference of which was made in the statement of PW8 Sh.S.C.Khanna, recorded under CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 169/248 Section 161 Cr.P.C. Thereafter, documents referred to in the letter dated 19.07.2006, in the statement under Section 161 Cr.P.C. of PW8 Sh.S.C.Khanna were brought on record and thereafter, an application under Section 294 Cr.P.C. was filed by accused, which was allowed vide order dated 07.03.2019 and documents referred to in the letter dated 19.07.2006 were admitted i.e. Lease Agreement and details of payment made by tenant to accused from February, 1998 till July, 2006. It was further submitted that accused had admitted the documents so produced which are exhibited as ADP-1 to ADP-6. It was further submitted that details of rent paid to accused were provided in Ex.ADP-5 and rent paid from February, 1998 till March, 1999 duly tallies with the certified Statement of Account of accused Ex.PW105/1 of State Bank of Patiala, Defence Colony branch. Accordingly, it was prayed that rent of Rs.13,41,000/- for the period from February, 1998 till March, 1999 be also added to the income of accused.
365. Lastly, it was submitted that in Ex.PW86/DX-15, it was disclosed that accused had received a deposit from CRB capital in the year 1996 of Rs.6,40,000/-, which was deposited in the State Bank of Patiala, Defence Colony Branch, New Delhi and the said amount is duly reflected in the certified Statement of Account Ex.PW105/1. However, said income was not added by the IO PW85 Sh.Jagroop S.Gusinha in para 10.11 Statement "C" of the charge sheet. Accordingly, it was prayed that income of accused from agriculture i.e. orchard, dairy business, rent from CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 170/248 February, 1998 till March, 1999, income from CRB Capital received during 1996, be added to the income of accused as mentioned by CBI in para 10.11 of the charge sheet and if the same is taken into account, no case of disproportionate assets is made out.
366. On the other hand, it was submitted by Ld.SPP for CBI that as per Section 13(1)(e) of the PC Act, the CBI was required to disclose in the charge sheet the sources of income known to the CBI. It was further submitted that sources of income which came to be known to the CBI during investigation was from the salary record of accused taken from Haryana Legislative Assembly and from the various income tax returns filed by accused and his wife, obtained from income tax department. It was further submitted that if there was some other source of lawful income, then the same was within the knowledge of accused and as per Section 106 of the Indian Evidence Act, 1872, onus was upon the accused to have proved the other sources of income on record.
367. It was submitted that accused and his wife had no income from agriculture during the Financial Year 1992- 1993 till 1998-1999, as no income tax returns were filed during this period. It was further submitted that from the Financial Year 1999-2000 till 2005-2006, accused and his wife had filed their income tax returns, showing the receipt of agriculture income. It was further submitted that no explanation has been offered by accused on record to show as to why he did not file income tax returns from the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 171/248 Financial Year 1992-1993 till 1998-1999, if he had any agricultural or dairy income. Therefore, non-filing of income tax returns proves that there was no agriculture income of accused or his wife.
368. It was further submitted that document produced on record by PW86 Sh.Rahul Bishnoi i.e. Ex.PW86/DX-15 was never received by the IO during the course of investigation and, therefore, the income mentioned therein from agriculture, dairy, rent etc. was not taken into account by the IO PW85 Sh.Jagroop S.Gusinha. It was further submitted that for the first time, said document Ex.PW86/DX-15 was brought on record during the course of cross examination of PW86 Sh.Rahul Bishnoi, which shows that the said document was forged and fabricated and was just brought on record to enhance the income of accused, without there being any basis. It was further submitted that if accused had indeed given the said document to the IO PW85 Sh.Jagroop S.Gusinha, then the said document Ex.PW86/DX-15 should have been shown to the IO PW85 Sh.Jagroop S.Gusinha in his cross- examination so that IO PW85 Sh.Jagroop S.Gusinha could have offered an explanation as to whether the said document was ever received by him during the course of investigation or not. However, in the entire cross examination of IO PW85 Sh.Jagroop S.Gusinha, document Ex.PW86/DX-15 was never put to him. Therefore, the said document was not admissible in evidence and do not prove the enhanced income of accused.
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369. It was further submitted that showing of orchard in the revenue record or in the document Ex.PW86/DX-15 do not prove that any income from the sale of kinoos (oranges) was being received by accused. It was submitted that accused should have led on record cogent evidence to show that any produce of kinoos (oranges) was being harvested from the orchard and the same was being sold in the market. However, there is no evidence on record to show where kinoos (oranges) were sold and how much amount was received by accused, on account of sale of kinoos (oranges). It was further submitted that even there is no evidence on record to show that orchard referred to in revenue documents, was producing any fruit. It was submitted that the least which was expected of accused was to have filed on record the photographs showing existence of kinoo (oranges) orchard having fruit bearing trees. However, no such photographs were filed on record. Therefore, accused has failed to prove on record that he had any earning from the orchard by selling the kinoos (oranges) in the open market. It was further submitted that by mentioning the income from the orchard, in the document produced by PW86 Sh.Rahul Bishnoi i.e. Ex.PW86/DX-15, agriculture income do not stand proved unless it was established on record, by leading cogent evidence by examining the person to whom the fruits from the orchard were sold. Therefore, income from agriculture cannot be added to the income, taken by the CBI in the charge sheet.
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370. It was further submitted that even income from dairy business was not proved on record by accused as the persons to whom the milk was sold, were never examined and just by mentioning the income from dairy business in the documents produced by PW86 Sh.Rahul Bishnoi i.e. PW86/DX-15, no income can be inferred from the dairy business. Accordingly, it was submitted that no income from dairy business could be added to the income of accused.
371. With regard to the rental income, for the period from February, 1998 till March, 1999, it was submitted by Ld.SPP for CBI that no rental income was received by accused and that is why income tax return was never filed for the said Financial Year. Accordingly, it was prayed that no benefit of rent received during the said period, can be given to the accused.
372. Lastly, with regard to income from CRB Capital of Rs.6,40,000/-, it was submitted by Ld.SPP for CBI that there is no evidence on record to show that amount of Rs.6,40,000/- allegedly received by accused from CRB Capital was income of accused and not deposits made by accused or some investments made by accused in the form of shares, which were received by him in the year 1996.
373. It was further submitted that there is no evidence led on record by accused to show as to when he had invested and what was the nature of investment in CRB Capital. It was further submitted that in case, accused had invested himself in the CRB Capital, then it cannot be termed as CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 174/248 "income" but should be taken as an "investment" by accused. Therefore, in the absence of any evidence on record regarding nature of investment in CRB Capital, alleged amount of Rs.6,40,000/- cannot be termed as "income" of accused. Accordingly, it was concluded by submitting that whatever lawful income was declared by accused in his income tax returns and was receiving from the Haryana Legislative Assembly, in the nature of salary, allowances etc. were duly taken into account by the CBI and other sources of lawful income, which were not known to the CBI, were required to be proved on record by accused but he had failed to do so. Therefore, the income of accused is not required to be increased from what is mentioned in the charge sheet.
FINDING
374. I have considered the rival submissions and have carefully perused the evidence led on record alongwith the documents filed on record.
375. The contention of Ld.Defence counsel that accused was only required to bring into the knowledge of CBI, his source of income from agriculture and dairy business and therefore, the onus was upon the CBI to show the exact source of income of accused, deserves to be rejected.
376. The reason for the same is that CBI is required to bring on record those lawful sources of income, which are known to the CBI. In this regard, Section 13(1)(e) of the PC Act read with explanation is being reproduced CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 175/248 hereinbelow:--
"13. Criminal misconduct by a public servant.--
(1) A public servant is said to commit the offence of criminal misconduct,--
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,-- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he 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 or property disproportionate to his known sources of income.
Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 176/248 has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
377. It is a settled principle of law that "known sources of income", as mentioned in explanation to Section 13(1)
(e) of PC Act, are those lawful sources, the receipt of which has been duly intimated as per law. The expression "known sources of income" has reference to sources known to the prosecution after thorough investigation. The other lawful sources of income, which are in the specific knowledge of the accused, are required to be proved on record by accused himself. I am fortified in my reasoning by the judgment of the Hon'ble Supreme Court of India delivered in State of Madhya Pradesh Vs. Awadh Kishore Gupta and Ors. (2004) 1 SCC 691 wherein it was held in paras 5,6 and 7 as under:
"5. Section 13 deals with various situations when a public servant can be said to have committed criminal misconduct. Clause (e) of sub-section (1) of the Section is pressed into service against the accused. The same 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 pecuniary resources or property disproportionate to his known sources of income. Clause (e) of sub-section (1) of section 13 corresponds to clause (e) of sub-section (1) of section 5 of the Prevention of Corruption Act, 1947 (referred to as 'Old Act'). But there has been drastical 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 CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 177/248 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 source, the receipt of which has been intimated in accordance with the provisions of any law, rules orders for the time being applicable to a public servant. The expression "known sources of 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').
6. The phrase "known sources of income" in section 13(1)(e) {old section 5(1)(e) } has clearly emphasis 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 elastic 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 having 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" is receipt in the hand of its recipient, every receipt would not partake into the character of income. Qua the public servant, whatever return he gets of his service, will be the primary item of his income. Other incomes which can conceivably are 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 from the "known sources of income" of a public servant.
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7.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.
378. Further, if certain sources of income of an accused person, as disclosed by him, during the course of investigation, have not been taken into account by the investigating officer, then it is always upon the accused to prove such other sources of income during trial. In this context, I rely upon the judgment of the Hon'ble Supreme Court of India delivered in C.S.D.Swamy Vs. The State, 1960 AIR, 7 where it was held as under:--
"......Now, the expression " known sources of income " must have reference to sources known to the prosecution on a thorough investigation of the case. It was not, and it could not 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 s. 106 of the Evidence Act. The prosecution can only lead evidence, as it has done in the instant case, to show that the accused was known to earn his living by service under the Government during the material period. The prosecution would not be justified in concluding that travelling allowance was also a source of income when such allowance is ordinarily meant to compensate an officer concerned for his out-of-pocket expenses incidental to journeys performed by him for his official tours. That could not possibly be CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 179/248 alleged to be a very substantial source of income. The source of income of a particular individual will depend upon his position in life with particular reference to his occupation or avocation in life. In the case of a, Government servant, the prosecution would, naturally, infer that his known source of income would be the salary earned by -him during his active service. His pension or his provident fund would come into calculation only after his retirement, unless he had a justification for borrowing from his provident fund. We are not, therefore, impressed by the argument that the prosecution has failed to lead proper evidence as to the appellant's known sources of income.
It may be that the accused may have made statements to the Investigating Officers as to his alleged sources of income, but the same, strictly, would not be evidence in the case, and if the prosecution has failed to disclose all the sources of income of an accused person, it is always open to him to prove those other sources of income which have not been taken into account or brought into evidence by the prosecution."
379. The second contention of Ld.Defence counsel that onus was always upon the CBI to have proved all the sources of income of accused, also deserves to be rejected.
380. The reason for the same is that onus upon the CBI was to prove that accused, a public servant possessed assets, which were disproportionate to his known sources of income. Once the CBI had discharged the initial onus, then the onus shifted upon the accused to satisfactorily account for such dis-proportionality by proving his source of income or means by way of which, he acquired assets. Therefore, it is not correct to say that entire onus is upon CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 180/248 the CBI to prove the source of income of accused in a case under Section 13(1)(e) of the PC Act. I am fortified in my reasoning by the judgment of the Hon'ble Supreme Court of India delivered in State of Karnataka Vs. Selvi Jayalalitha and Ors., JT 2017 (4) SC 14 wherein the Hon'ble Supreme Court of India has observed that onus is upon accused to satisfactorily account for the dis- proportionality of the properties possessed by him, in para 219 as under:--
"219. A Constitution Bench of this Court in K. Veeraswami Vs. Union of India & Ors., (1991) 3 SCC 655, again elaborating on an offence under Section 5(1)(e) read with Section 5(2) of the Act 1947 reaffirmed the view that clause (e) of Section 5 (1) created a statutory offence which must be proved by the prosecution and when the onus is discharged by it, the accused has to account satisfactorily for the dis proportionality of the properties possessed by him. It was noted that the Section did make available a statutory defence to the accused which he/she was to prove and that the public servant was required to account for the disparity of the assets qua the income. Though it was observed that the legal burden of proof placed on the accused was not so onerous as that of the prosecution, it was enunciated that it would not be enough to just throw some doubt on the prosecution version. Referring to the expression "satisfactorily account", it was ruled that due emphasis must be accorded to the word "satisfactorily" which signified that the accused has to satisfy the Court that his explanation was worthy of acceptance. Though it was marked that the procedure was contrary to the well known principle of criminal jurisprudence that the burden of proof lay always on the prosecution and did never shift to the accused, the competence of the Parliament to shift such burden on certain aspects and particular in matters especially in the knowledge of the accused, was acknowledged. The plea of CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 181/248 the appellant therein that the possession of assets disproportionate to one's source of income is no offence, till the public servant was able to account for the excess thereof was not accepted. It was held that if one possesses assets beyond his legitimate means, it goes without saying that the excess is out of ill-gotten gain observing that assets are not drawn like Nitrogen from the air and that have to be essentially acquired, for which means are necessary. It was stressed upon that the public servant concerned was required to prove the source of income or the means by which he had acquired the assets. It was propounded that once the prosecution proved that the public servant possessed assets dis- proportionate to his known sources of income, the offence of criminal conduct was attributed to him but it would be open to him to satisfactorily account for such dis-proportionality. (Emphasis supplied)."
381. In the light of law as discussed hereinabove, the evidence led on record is required to be appreciated to find out as to whether accused had satisfactorily explained his sources of income, which were not known to the CBI, and were within the specific knowledge of the accused.
INCREASE OF INCOME SOUGHT ON THE BASIS OF CANCELLATION REPORT
382. Ld.Defence counsel has sought an addition of agriculture income of Rs.20,00,000/-per year, on the basis of cancellation report Ex.DW22/A filed with regard to FIR No. 34/1997, PS Sadar Dabwali, Haryana.
383. I have carefully perused the police file Ex.DW16/DB (AD-93) and in the said file, there is a judicial order dated 03.05.1997 but the same is regarding CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 182/248 the dismissal of anticipatory bail application of accused and there is no judicial order accepting the cancellation report Ex.DW22/A. However, since the fact of accepting the cancellation report by Ld.Special judge, Sirsa vide order dated 25.01.2000 is not disputed by CBI in para 16.5 of the chargesheet, therefore, absence of order dated 25.01.2000 is not of much relevance. However, the police file Ex.DW16/DB (AD-93) does have the copy of complaint made by the complainant Sh.Partap Singh, in the form of his affidavit dated 11.01.1997. As per para 4 of the affidavit, the allegations pertain to the period i.e. 1977- 1979 and 1987-1991, when accused allegedly had amassed wealth worth hundreds of crores of rupees, by corrupt and illegal means.
384. After investigation, the police had filed the cancellation report Ex.DW22/A. In the cancellation report Ex.DW22/A, it is mentioned by the IO that during the course of investigation, accused had disclosed that his agriculture income per year was worth Rs.20,00,000/-.
385. The Ld.Defence counsel wants that this observation made by IO, in his cancellation report Ex.DW22/A, be accepted as correct and be taken as income of accused from agriculture i.e. Rs.20,00,000/- per year, as cancellation report Ex.DW22/A has been accepted by the concerned court and the challenge made to it in the Hon'ble High Court of Punjab and Haryana and in the Hon'ble Supreme Court of India, has been dismissed.
386. The contention of Ld.Defence counsel deserves to CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 183/248 be rejected on the following grounds. Firstly, as observed hereinabove, the allegations made by complainant Partap Singh pertained to a different period than what is alleged in the present FIR. The allegations against accused in FIR No. 34/1997 PS Sadar Dabwali pertained to period from 1977-1979 and 1987-1991, when he had allegedly amassed huge property disproportionate to his known source of income. However, in the present case, check period is quite different i.e. from 24.05.1993 to 31.05.2006. Therefore, income of accused during the period from 1977-1979 and 1987-1991 is not at all relevant to the present case.
387. Secondly, the observation made by IO that accused had agriculture income of Rs.20,00,000/- per year was made, on the basis of disclosure made by accused to the IO and was not based upon some independent investigation. There is nothing in the cancellation report Ex.DW22/A, which suggests that whatever accused had disclosed, was found to be correct as per the documents of income collected by IO during investigation. Further, there is nothing mentioned in the cancellation report Ex.DW22/A as to on what basis, IO had believed that accused had agriculture income of Rs.20,00,000/- per year. IO has merely narrated in the cancellation report Ex.DW22/A regarding the defence disclosed by accused during the course of questioning. IO had not carried out any independent investigation regarding the disclosure made by accused of his agriculture income. Disclosure made by accused to IO is not evidence. Therefore, merely on the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 184/248 disclosure of accused, it cannot be said that accused indeed had income of Rs.20,00,000/- per year from agriculture business.
388. Thirdly, the cancellation report Ex.DW22/A was accepted by the court, based upon the investigation done by the police and the matter never went up for trial. Only at trial, this fact could have been established whether whatever accused had disclosed to the IO regarding his agriculture income, was a correct claim or a false one. However, since no trial had taken place in the previous FIR No. 34/1997 PS Sadar Dabwali, therefore, this fact of accused having Rs.20,00,000/- per year as agriculture income, was not established on record.
389. Fourthly, as discussed hereinabove, judicial order dated 03.05.1997 regarding acceptance of cancellation report Ex.DW22/A is not on record, as judicial file of the said FIR No.34/1997 PS Sadar Dabwali has been destroyed as deposed by IO PW85 Sh.Jagroop S.Gusinha. The record produced with regard to FIR No.34/1997 PS Sadar Dabwali was the police file, which is Ex.DW16/DB (AD-93) and the file pertaining to the bail application produced by DW15 Sh.Vijay Kumar, Deputy Record Keeper, Sessions Division, Sirsa which was exhibited as Ex.DW15/DA. Neither the judicial record pertaining to bail application of accused Ex.DW15/DA nor the police file Ex.DW16/DB (AD-93) pertaining to FIR No. 34/1997 PS Sadar Dabwali, had the judicial order dated 03.05.1997. Therefore, it cannot be said that concerned court had CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 185/248 accepted the disclosure of accused i.e. agriculture income worth Rs.20,00,000/-per year, as mentioned in the cancellation report Ex.DW22/A. Further, on careful perusal of cancellation report Ex.DW22/A, it is seen that each and every allegation regarding property owned by accused was found to be false and incorrect and no investigation was carried out by the IO with regard to agriculture income of accused and IO had only noted down the disclosure of accused, regarding his income. Therefore, it was never established on record, in the cancellation report Ex.DW22/A, that accused was indeed having agriculture income of Rs.20,00,000/- per year. Therefore, this contention deserves to be rejected.
AGRICULTURE / DAIRY INCOME
390. The next ground on which the Ld.Defence counsel had sought increase in the income of accused was on the strength of document Ex.PW86/DX-15 (colly). It was submitted in this regard that since PW86 Sh.Rahul Bishnoi, Chartered Accountant of accused, had submitted income documents of accused during the course of investigation to the IO PW85 Sh.Jagroop S.Gusinha, therefore, IO PW85 Sh.Jagroop S.Gusinha had become aware regarding the source of income of the accused and it was for the IO PW85 Sh.Jagroop S.Gusinha to have established the source of income of accused, apart from income tax returns. This contention of Ld.Defence counsel deserves to be rejected in the light of judgment of the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 186/248 Hon'ble Supreme Court of India delivered in Awadh Kishore Gupta's case (supra) and C.S.D.Swamy's case (supra).
391. Secondly, even the document Ex.PW86/DX15 was never handed over to IO during investigation. The court arrives at this conclusion, based on the following reasons:--
392. Firstly, the document Ex.PW86/DX-15 is a letter dated 01.04.2008 addressed by PW86 Sh.Rahul Bishnoi to the SP, CBI and annexed to this letter were the details regarding agriculture income, rent, deposit receipt from CRB Capital, interest income and dairy income of accused and his wife.
393. The document Ex.PW86/DX-15 (colly) was first produced by accused, during the course of cross examination of PW86 Sh.Rahul Bishnoi and the same was objected to by Ld.SPP for CBI, on the ground of it being produced for the first time at that stage, without advance copy being supplied to the CBI and on the ground of it being a photocopy and thereafter, during the course of re- examination of PW86 Sh.Rahul Bishnoi, Ld.SPP had also suggested that documents annexed with the letter Ex.PW86/DX-15 (colly) were forged and fabricated and were never handed over to the CBI as it had got no receiving of the CBI official. The stand of PW86 Sh.Rahul Bishnoi was that he had indeed handed over Ex.PW86/DX-15 to the CBI on 01.04.2008 but the evidence. which has come on record suggests otherwise. If CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 187/248 Ex.PW86/DX-15 was indeed handed over to the SP, CBI, in the presence of IO PW85 Sh.Jagroop S.Gusinha, as deposed by PW86 Sh.Rahul Bishnoi in the cross- examination, then it was natural for the accused's counsel to have put the said document in the cross examination of IO i.e. PW85 Sh.Jagroop S.Gusinha. However, in the entire cross examination of IO PW85 Sh.Jagroop S.Gusinha, the said document was never put to him. Therefore, explanation of IO PW85 Sh.Jagroop S.Gusinha, has never come on record with regard to receiving of these documents Ex.PW86/DX-15 (colly). It is not very difficult to understand as to why these documents Ex.PW86/DX-15 (colly) were never put to IO PW85 Sh.Jagroop S.Gusinha, in his cross examination as IO PW85 Sh.Jagroop S.Gusinha would have denied about the receipt of same. Therefore, it was never proved on record that documents Ex.PW86/DX-15 (colly) were given to the IO PW85 Sh.Jagroop S.Gusinha or to the SP, CBI, in the presence of IO PW85 Sh.Jagroop S.Gusinha.
394. Secondly, document Ex.PW86/DX-15 (colly) do not have any receiving of the CBI official or of the IO PW85 Sh.Jagroop S.Gusinha.
395. Thirdly, IO PW85 Sh.Jagroop S.Gusinha has brought on record all the documents, so received by him from accused, during the course of investigation and the same are contained in documents D-31 and D-32 alongwith covering letter of the IO PW85 Sh.Jagroop S.Gusinha. Therefore, when IO PW85 Sh.Jagroop CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 188/248 S.Gusinha can bring on record other documents given by accused during the course of investigation, then nothing prevented the IO PW85 Sh.Jagroop S.Gusinha to bring on record the document Ex.PW86/DX-15(colly), if he had received the same during the course of investigation. It seems that accused has deliberately brought document Ex.PW86/DX-15(colly) on record only during the course of cross examination of PW86 Sh.Rahul Bishnoi, so as to take a plea of his lawful income having not been considered by the IO PW85 Sh.Jagroop S.Gusinha.
396. Fourthly, it has come in the cross examination of PW86 Sh.Rahul Bishnoi that in response to document Ex.PW86/DX-15 (colly), he had received a letter from the CBI seeking clarification regarding documents mentioned in Ex.PW86/DX-15 (colly) and reply had been sent by accused to the CBI. However, PW86 Sh.Rahul Bishnoi, on being asked in his cross examination recorded on 06.01.2016, to produce the said letter received from CBI, he was unable to do so which also makes it doubtful that he had sent any documents vide letter Ex.PW86/DX-15 (colly).
397. Another document, which proves that document Ex.PW86/DX-15 was not handed over to IO is the statement under Section 161 Cr.P.C. of PW86 Sh.Rahul Bishnoi, recorded at the time of investigation, which has been relied upon by Ld.Defence counsel and is exhibited as Ex.PW86/D-1. Even in the said statement, there is no reference made of the letter dated 01.04.2008, whereby CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 189/248 PW86 Sh.Rahul Bishnoi has made available to the IO the documents Ex.PW86/DX-15 (colly) regarding income of accused from agriculture and dairy business. Therefore, all the aforementioned reasons show that Ex.PW86/DX-15 (colly) was never handed over the IO PW85 Sh.Jagroop S.Gusinha or to SP, CBI during the course of investigation and same have been introduced, at the stage of cross- examination of PW86 Sh.Rahul Bishnoi.
398. Even assuming that documents Ex.PW86/DX-15 (colly) were handed over to the IO PW85 Sh.Jagroop S.Gusinha, during the course of investigation and if IO PW85 Sh.Jagroop S.Gusinha had not collected any evidence with regard to agricultural / dairy income of accused, then also nothing prevented accused to prove his other sources of income to satisfactorily account for the dis-proportionality as per the judgment of the Hon'ble Supreme Court of India delivered in C.S.D.Swamy's case (supra).
399. Assuming document Ex.PW86/DX-15 was handed over to IO PW85 Sh.Jagroop S.Gusinha during investigation, then also it nowhere proves the income of accused from agriculture and dairy business.
400. The Ld.Defence counsel has heavily relied upon the document Ex.PW86/DX-15, wherein Income Chart has been provided from the year 1979-1980 till 1998-1999 of income of accused and his wife from the orchard at village Teja Khera and at village Chautala, Sirsa. The year-wise detail of income from orchard has been provided by PW86 CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 190/248 Sh.Rahul Bishnoi in the tabular form. However, PW86 Sh.Rahul Bishnoi has not explained in his evidence, as to on what basis, he had calculated the year-wise income from the orchard of accused and his wife at village Teja Khera and at village Chautala, District Sirsa, Haryana. It has come in the evidence of PW86 Sh.Rahul Bishnoi that he was the Chartered Accountant and was providing professional services to the accused and his family since 2001. It has also come in the re-examination by Ld.SPP for CBI of PW86 Sh.Rahul Bishnoi recorded on 19.04.2016, that income tax returns of accused were prepared by the Accounts Department and was filed by Mr.T.R.Singla and role of PW86 Sh.Rahul Bishnoi was to the extent of vetting the books of account of accused i.e. bank statement and cash book only, from 1993 onwards. Therefore, since PW86 Sh.Rahul Bishnoi was neither filing the income tax returns of the accused nor was handling the accounts of the accused, therefore, on what basis, he had provided the Income Chart of accused and his wife, with regard to income derived from the orchard, has not been established on record. Further, since PW86 Sh.Rahul Bishnoi was providing his professional services to accused from 2001 onwards, therefore, it is not believable that he will have any information regarding the source of income from orchard prior to 2001. Even assuming that PW86 Sh.Rahul Bishnoi had the information, then the source of information was required to be disclosed on record, on the basis of which chart of income, annexed to Ex.PW86/DX-
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 191/248 15 (colly) was prepared. It is very easy for a professional person like PW86 Sh.Rahul Bishnoi, who is a Chartered Accountant, to prepare a chart of income from 1979 onwards, showing the income generated from orchard but unless the source of income reflected in the chart is established, the same is not worthy of acceptance.
401. PW86 Sh.Rahul Bishnoi, had allegedly furnished this document Ex.PW86/DX-15 in the year 2008, wherein income from 1979 onwards till 1999 has been reflected of accused from the orchard. It is not believable that any person can remember as to what was the income of a person from year 1979-1980 onwards. Therefore, PW86 Sh.Rahul Bishnoi must have referred to some account books or documents, from where he derived the income of the accused from 1979-1980 till the year 1999, from the orchard. However, the said account books or documents were never produced on record by the accused to lend credence that income chart produced by PW86 Sh.Rahul Bishnoi vide document Ex.PW86/DX-15 (colly) had some reasonable basis. Therefore, this fact also makes the court dis-believe that accused had any income from the Orchard from 1979-1980 onwards as reflected in Ex.PW86/DX15.
402. The accused in order to further establish on record that he had agriculture income, had examined DW4 Sh.Bhopal Singh, who was the caretaker of Teja Khera Farm House, Sirsa, Haryana. It has come in the evidence of DW4 Sh.Bhopal Singh that there was a kinoo (oranges) orchard on 40 acres of land at Teja Khera, which he was CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 192/248 looking after. He further deposed that kinoos (oranges) used to be exported and the agriculture produce used to be sold at agriculture mandi situated at Sirsa, Dabwali and Chautala. It has also come in his cross- examination that after meeting the expenditure relating to the agriculture production, the balance used to be given to its owner i.e. accused. However, as per deposition of DW4 Sh.Bhopal Singh, no record was produced in the defence evidence by accused, regarding selling his agriculture produce at agriculture market at Sirsa, Dabwali and Chautala and no record was produced with regard to exporting of fruits to some other countries, as deposed by DW4 Sh.Bhopal Singh. Further, as per the evidence of DW4 Sh.Bhopal Singh, the income from agriculture produce and the dairy used to be given to accused. However, accused has not stepped into the witness box to depose what was the income received by him and from whom the said income was received regarding sale of agriculture produce and milk. It was further deposed by DW4 Sh.Bhopal Singh that record of cash was maintained by the Chartered Accountant, namely, Sachin. However, even Sachin was not examined in his defence by the accused, to prove as to the quantum of income received by him in cash from the sale of agriculture produce and dairy milk. Therefore, evidence of DW4 Sh.Bhopal Singh, nowhere convincingly brought on record, any source of agriculture income of accused, from his Teja Khera property, Sirsa.
403. With regard to income from agriculture at village CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 193/248 Chautala, Sirsa accused had examined, in his defence DW8 Sh.Madan Mohan, relative of accused and DW9 Sh.Pradeep Kumar. It has come in the evidence of DW8 Sh.Madan Mohan and DW9 Sh.Pradeep Kumar, who are both residents of village Chautala, that they were looking after the orchard of accused, at village Chautala, Sirsa since 1980 onwards. It has come in the evidence of DW8 Sh.Madan Mohan that there was an orchard on 7 acres of agriculture land of accused at village Chautala, which was given on contract basis and there was earning of Rs.2,00,000/-per year in the year 1980 which was further enhanced to Rs.2,50,000/- and Rs.2,75,000/- per year till 1990 when the entire orchard was uprooted. It was further deposed by DW8 Sh.Madan Mohan that after the harvest of crops / fruits from the orchard, the same were sent by accused at his own shop at Mandi Dabwali or it used to be sent to Sangaria Mandi in Rajasthan. It has also come in the evidence of DW8 Sh.Madan Mohan that whenever agriculture produce is required to be sold, then J Form was always issued by the Middleman and accused always used to receive the same. However, in the entire evidence of DW8 Sh.Madan Mohan and DW9 Sh.Pradeep Kumar, the name of the contractor, who had taken the orchard on rent, was ever disclosed nor any J Form against the sale of agriculture produce was filed on record nor any record was summoned from Sangaria Mandi (Market) or from the agriculture market of Mandi Dabwali to show that any agriculture produce of accused was sold at the aforesaid CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 194/248 agriculture markets.
404. Lastly, accused had examined Sh.Dilawar Singh as DW21, who as per evidence of DW8 Sh.Madan Mohan and DW9 Sh.Pradeep Kumar, used to maintain all record regarding sale of agriculture produce. DW21 Sh.Dilawar Singh has deposed on oath that he was working as Cashier in the Kisan Trading Company at Sirsa, Haryana and all the agriculture produce from the agricultural fields owned by accused, was being received by M/s.Kisan Trading Company, who used to sell the same to other wholesalers. However, DW21 Sh.Dilawar Singh did not produce any specific account maintained by him to show what was the exact sale amount of agriculture produce paid to accused by M/s.Kisan Trading Company. Further, from various cash books relied upon by DW21 Sh.Dilawar Singh, no entry was discernible showing payment of money in cash to the accused against the sale of his agriculture produce. DW21 Sh.Dilawar Singh also did not depose specifically as to what was the income of accused from his land at village Chautala and neither any account maintained was produced by him, with regard to payment received on account of sale of agriculture produce of village Chautala, as deposed by DW8 Sh.Madan Mohan and DW9 Sh.Pradeep Kumar. Further, DW21 Sh.Dilawar Singh also did not produce any J Form showing the purchase of agriculture produce from accused of village Chautala and village Teja Khera, Sirsa. Therefore, evidence of DW8 Sh.Madan Mohan, DW9 Sh.Pradeep Kumar and DW21 CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 195/248 Sh.Dilawar Singh nowhere proves any income of accused from orchard at village Chautala, Sirsa or from agriculture produce from his land situated at Village Teja Khera and village Chautala, Sirsa, Haryana.
405. With regard to dairy income, it has come in the evidence of DW4 Sh.Bhopal Singh and DW11 Sh.Dharamvir, that all the milk produced at the Farm House at Teja Khera, Sirsa was utilized for meetings of the party or it used to be sold out in the market. It has also come in the evidence of both DW4 Sh.Bhopal Singh and DW11 Sh.Dharamvir that income from the dairy business i.e. milk used to be handed over to the accused. Therefore, the best person, who could have deposed regarding the income from dairy business was accused himself. However, accused has not stepped into the witness box to give evidence as to what was the quantum of income received by him from dairy business. Withholding the best evidence, makes this court raise an adverse inference against the accused under Section 114 of the Indian Evidence Act, 1872 that there was no dairy income.
406. Another factor, which shows that there was no income from dairy business either of accused or his wife, is the fact that neither in the income tax returns of accused (D-33 & 34) nor in the income tax returns of the wife of accused (D-35), any income from dairy business has been reflected in the income tax returns except for return filed by wife of accused, for the Financial Year 2005-2006, wherein she had shown her income from dairy business to CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 196/248 the tune of Rs.2,90,000/- only. Therefore, income tax returns brought on record by the CBI, proves that income from dairy business only accrued to the wife of accused and that too in the Financial Year 2005-2006 and before that, neither accused nor his wife had any income from dairy business.
407. It has also come in the re-examination of PW86 Sh.Rahul Bishnoi, by Ld.SPP for CBI, recorded on 19.04.2016, that whatever income was earned by accused and his wife, the same was shown in the income tax returns. Since no dairy income was shown in the income tax returns of the accused and his wife for the Financial Year 1999-2000 till the Financial Year 2004-2005, therefore, it is difficult to believe that accused or his wife had any income from dairy business during the said period. Further, if accused or his wife had any income of Rs.82,12,500/- from dairy business during the period 1991-1999 as mentioned in Ex.PW86/DX15, then why no income tax return was filed by them, has not been explained by accused or by PW86, who was the Chartered Accountant of accused.
408. Further, having regard to the admission made by PW86 Sh.Rahul Bishnoi that whatever income was there of the accused and his wife, the same was reflected in the income tax returns, further goes to prove that since there was no taxable income of accused and his wife for the period from 1991-1999, therefore, no income tax returns were filed. Hence, accused has failed to prove on record CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 197/248 that he had any income from dairy business.
409. The contention of Ld.Defence counsel that income tax returns from the Financial Year 1992-1993 till the Financial Year 1998-1999 were not filed by the accused, as agriculture income is exempt from income tax, deserves to be rejected.
410. The reason for the same is although the agriculture income is exempt from income tax, as per Section 10(1) of the Income Tax Act, 1961 but Section 139 of the Income Tax Act read with Rule 12 of the Income Tax Rules, 1962 makes it mandatory for a person to file income tax return, in case agriculture income exceeds Rs.5,000/- per year. Since as per document Ex.PW86/DX-15, agriculture income claimed was more than Rs.5,000/-per year from the Financial Year 1992-1993 onwards, therefore, it was mandatory for the accused to have filed the income tax return. Further, it has also come in the re-examination of PW86 Sh.Rahul Bishnoi recorded on 19.04.2016, as discussed hereinabove, that whatever income accused and his wife had, the same were reflected in the income tax returns. Therefore, the non-filing of income tax return from the Financial Year 1992-1993 till the Financial Year 1998-1999, makes this court raise an adverse inference, as per Section 114 of the Indian Evidence Act, 1872, that accused had no agriculture or dairy income for the aforementioned Financial Years and that is why, no income tax return was filed with the income tax authorities. Accused could have proved to the contrary by proving that CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 198/248 he had agriculture / dairy income from the Financial Year 1992-1993 till the Financial Year 1998-1999 but as discussed hereinabove, no evidence has come on record to show income of accused or his wife from agriculture or dairy business.
411. On the contrary, when the incriminating evidence coming on record with regard to income of accused during the period from 1992-1993 till 1998-1999, was put to accused vide questions no.75 to 81 under Section 313 Cr.P.C., accused never offered any kind of explanation that apart from income produced on record by the CBI, he had other lawful income from agriculture and dairy business, which has not been taken into account by the CBI.
412. Further, with regard to question no.81, wherein income for the Financial Year 1998-1999 was put to him, accused had answered by stating that whatever sources of income including agriculture were there, the same were reflected. This explanation offered by accused in response to question no.81 also shows that all sources of income were duly reflected by him in his income tax calculation sheet and there was no income from any other sources including that of agriculture and dairy business.
413. Further, with regard to wife of accused, a specific question no. 92 was put to accused under Section 313 Cr.P.C. that prior to Financial Year 1999-2000, she was not having any income and that is why, no income tax return was filed by her with the Income Tax Department and in response to the same, accused had answered that it might CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 199/248 be correct. Therefore, the evidence which has come on record and the explanation offered by accused with regard to his income and that of his wife during the period from 1992-1999 under Section 313 Cr.P.C., shows that accused or his wife had no income from any other source like agriculture or dairy and whatever income the CBI has shown during the said period was the correct income.
414. Another aspect, which is conspicuous regarding income of accused is that from Financial Year 1992-1993 till the Financial Year 1998-1999, the income of accused varied between Rs.25,000/-per year to Rs.1,42,000/- per year. However, with the onset of the Financial Year 1999- 2000, there was a huge jump in the income of accused. The income of accused from the Financial Year 1999-2000 till the Financial Year 2005-2006 was between Rs.26,00,000/- per year to Rs.45,00,000/- per year and major chunk of the income of accused for the relevant financial year was agriculture income.
415. It is not difficult to understand as to why accused started showing huge income from agriculture from the Financial Year 1999-2000 onwards. The reason for the same was the registration of FIR No. 34/1997 PS Sadar Dabwali under Section 13(1)(d) and (e) of the PC Act. It is quite possible that accused, in order to show that he had huge income to own the assets, had started filing his income tax returns from the Financial Year 1999-2000 onwards wherein large portion of income was derived from agriculture. Although accused and his wife was CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 200/248 having agricultural land at village Teja Khera, Chautala and village Lambi, Sirsa but whether he was having agriculture income, running into lacs of rupees was for the CBI to establish on record. However, CBI had failed to lead any evidence on record to show that income from agriculture reflected in the income tax returns of the accused and his wife ( Part of D-33, 34 and D-35) was an inflated income. Therefore, this court has no option but to believe that the agriculture income reflected in the income tax returns of the accused was his income, for those relevant Financial Years.
INCOME FROM RENT
416. With regard to income from rent received from Flat No. B-601, Gauri Sadan, 5, Hailey Road, New Delhi between the period from 01.02.1998 till 31.03.1999, I have carefully perused the evidence, which has come on record. The evidence on record shows that PW8 Sh.S.C.Khanna, Secretary General of Association of Basic Telecom Operators, had deposed in his examination in chief that they had taken on rent Flat No. B-601, Gauri Sadan, 5, Hailey Road, New Delhi from accused. However, before PW8 Sh.S.C.Khanna could depose anything about rate of rent and period of tenancy, Ld.SPP for CBI had sought adjournment to produce some documents. However, thereafter, said witness was not examined in this case. Thereafter, vide order dated 16.01.2019, directions were passed to CBI to bring on record the documents referred in CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 201/248 the letter dated 19.07.2006, reference of which was made in the statement of PW8 Sh.S.C.Khanna, recorded under Section 161 Cr.P.C. Thereafter, documents referred to in the letter dated 19.07.2006, in the statement of PW8 Sh.S.C.Khanna were brought on record and thereafter, an application under Section 294 Cr.P.C. was filed by accused, which was allowed vide order dated 07.03.2019 and documents referred to in the letter dated 19.07.2006 of PW8 Sh.S.C.Khanna were admitted to be genuine by the accused and were exhibited as Ex.ADP-1 to ADP-6.
417. As per Lease Agreement Ex.ADP-1, accused had rented out his Flat No. B-601, Gauri Sadan,5, Hailey Road, New Delhi to Association of Telecom Operators. As per the Lease Agreement Ex.ADP-1, rate of rent was Rs.90,000/-per month and three months advance rent of Rs.2,70,000/- was also taken, which was to be adjusted in equal monthly installments till the advance rent was duly adjusted. The details of rent paid have been shown in the document Ex.ADP-5 and it shows the rate of rent of Rs.90,000/- and the actual rent paid after deducting TDS and the advance rent paid of Rs.2,70,000/-in installments between February, 1998 and January, 1999. The details in Ex.ADP-5 are as follows:--
Year Cheque Cheque TDS Advance Rate of Rent 1997-1998 Date amount Rent January 30/01/1998 2,70,000/- 2,70,000/- February 30/01/1998 54,000/- 13,500/- 22,500/- 90,000/- March 07.03.1998 54,000/- 13,500/- 22,500/- 90,000/-
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 202/248 Year 1998-1999 April 01/04/1998 57,375/- 10,125/- 22,500/- 90,000/- May 08/05/1998 57,375/- 10,125/- 22,500/- 90,000/- June 03/06/1998 57,375/- 10,125/- 22,500/- 90,000/- July 30/06/1998 57,375/- 10,125/- 22,500/- 90,000/- August 01/08/1998 57,375/- 10,125/- 22,500/- 90,000/- September 05/09/1998 57,375/- 10,125/- 22,500/- 90,000/- October 05/10/1998 57,375/- 10,125/- 22,500/- 90,000/- November 05/11/1998 57,375/- 10,125/- 22,500/- 90,000/- December 05/12/1998 57,375/- 10,125/- 22,500/- 90,000/- January 04/01/1999 57,375/- 10,125/- 22,500/- 90,000/- February 05/02/1999 76.500/- 13,500/- - 90,000/- March 05/03/1999 76,500/- 13,500/- - 90,000/-
Total 11,04,750/-
418. Each and every entry of rent paid by the tenant i.e. Association of Basic Telecom Operators, as reflected in Ex.ADP-5 are duly reflected in the Savings Account of accused maintained at State Bank of Patiala, Branch Defence Colony, New Delhi, certified copy of which was produced on record by the CBI, which is Ex.PW105/1.
Therefore, accused had proved on record that he had received rent of Rs.11,04,750/-(which includes advance rent) during the period from January, 1998 till March, 1999, which was his lawful income. Therefore, benefit of this income has to be given to the accused. Accordingly, income of accused is required to be increased by Rs.11,04,750/-.
INCOME FROM CRB CAPITAL
419. With regard to CRB Capital, it was submitted by Ld.Defence Counsel that income of Rs.6,40,000/- from CRB Capital was not added by the CBI in the income of CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 203/248 accused. It was further submitted that relevant entries showing the receipt of income from CRB Capital is duly reflected in the Statement of Account of accused of State Bank of Patiala, Branch Defence Colony, New Delhi.
420. To appreciate the contention of Ld.Defence counsel, I have perused the certified Statement of Account of State Bank of Patiala, Branch Defence Colony, New Delhi, of accused, which is Ex.PW105/1 (colly) and as per the same, there is a credit entry of Rs.1,00,000/- on 03.10.1996 and of Rs.85,000/-each on 23.12.1996, 10.01.1997, 15.02.1997 and 07.03.1997 from CRB Capital. Therefore, total amount, which has been credited in the account of accused from CRB Capital is to the tune of Rs.4,40,000/-. However, it was for the accused to have satisfactorily explained the nature of payment received from the CRB Capital, in order to treat the same as income.
421. There is no evidence on record, led by accused, to show as to how this amount of Rs.4,40,000/- received from CRB Capital was income. In the opinion of this court, the possibility of accused investing his part of income in CRB Capital to buy shares, debentures or to place a Fixed Deposit, which he had received back, on maturity / encashment, vide the aforementioned entries, cannot be ruled out. Therefore, from the bank entries reflecting the receipt of payment from CRB Capital of Rs.4,40,000/-, it cannot be inferred that it was the income of accused, unless accused had satisfactorily accounted for the same, by producing the relevant documents on record. In absence CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 204/248 of documents and other evidence, it is difficult to treat Rs.4,40,000/- as income of accused, as possibility of the same being investment made by accused to purchase shares, debentures etc. cannot be ruled out. Therefore, this amount of Rs.4,40,000/- cannot be added to the income of accused.
CONCLUSION
422. In the light of aforementioned discussion, accused has failed to satisfactorily account for his income from agriculture and dairy business during the check period or for the period prior to the check period. However, income of accused for the check period as mentioned in para 10.11 of the charge sheet of Rs.2,62,22,377/- is required to be increased by Rs. 11,04,750/- which was his income from the rent received with regard to Flat No. B-601, Gauri Sadan, 5, Hailey Road, New Delhi. Therefore, total income of accused during the check period was 2,62,22,377/- + 11,04,750/- = 2,73,27,127/-.
423. The income of wife of accused, as per para 10.11 of the charge sheet of Rs.45,21,283/- and the car loan of Rs.15,00,000/- taken from the State Bank of India, Branch Dabwali, cannot be added to the income of accused as the said income of wife of accused has already been taken into account by this court while dealing with the movable asset i.e. Mercedes car bearing Registration No. HR 22 D-4977 purchased by wife of accused. Accordingly, benefit has been given to accused by decreasing the value of Mercedes car from his movable assets. Therefore, total income of CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 205/248 accused, during the check period comes to Rs.2,73,27,127/-.
STATEMENT "D"
EXPENDITURE INCURRED DURING THE CHECK PERIOD
424. As per para 10.12 of the charge sheet, the total expenditure of the accused was Rs.82,67,599/- and said expenditure was calculated based on the expenses made by accused on his medical treatment, payment of house taxes, payment of electricity bills, telephone bills, license fee, air tickets, bank charges, income tax etc. The total expenditure of wife of accused was Rs. 17,85,691/-and the same was calculated taking into account the expenses made by wife of accused towards insurance, income tax, repayment of car loan, salary paid to the employees, payment made on account of purchase of air tickets etc.
425. Further, non-verifiable expenditure i.e. 1/3rd of the net income was also taken into account, which was Rs.90,85,923/- and hence, total expenditure arrived at was Rs.1,91,39,213/-.
EXPENDITURE OF ACCUSED
426. As per Statement "D" of the charge sheet, there were 16 entries regarding the various expenses incurred by the accused. Out of the said 16 entries, accused had disputed entries no.1,4,7,8,10,11,13,14 to 16 and the remaining entries were admitted to be correct by the Ld.defence counsel.
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 206/248
427. Now, I shall deal with each entry disputed by the Ld.defence counsel and will peruse the documents as well as the evidence led on record to give a finding as to whether the disputed expenditure has been proved by the CBI or not?
EXPENDITURE NO.1: MEDICAL EXPENSES
PAID TO SIR GANGA RAM HOSPITAL OF
RS.1,38,307/-.
428. As per the charge sheet, accused was admitted in Sir Ganga Ram Hospital, New Delhi on 10.11.2005 for orthopedic treatment and total medical bill was to the tune of Rs.2,34,627/-. Out of the total bill, Rs.96,320/- was reimbursed by the Central Government and the remaining amount of Rs.1,38,307/- was taken as expenditure of the accused.
Submissions of Ld.Defence counsel and Ld.SPP for CBI
429. It was submitted by Ld.Defence counsel that the CBI has wrongly taken expenditure of Rs.1,38,307/- regarding medical expenses incurred by accused as accused had not made said payment. It was submitted that the entire payment of Rs.2,34,627/- was paid in cash by the relative of accused i.e. DW5 Sh.Subhash Chand and accused had examined two witnesses in his defence to prove that the said payment was made in cash by DW5 Sh.Subhash Chand. Accordingly, a prayer was made to decrease the amount of Rs.1,38,307/- from the expenditure CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 207/248 of accused.
430. On the other hand, Ld.SPP for CBI opposed the prayer of Ld.Defence counsel and has submitted that the documents brought on record show that the entire payment of Rs.2,34,627/-was made in cash by the accused. It was further submitted that the evidence of DW5 Sh.Subhash Chand is not at all reliable and trustworthy as he has deposed regarding getting the accused discharged from the Ram Manoher Lohia Hospital, New Delhi whereas accused was admitted in Sir Ganga Ram Hospital, New Delhi. Apart from that, CBI has examined on record PW25 Sh.Gajender Singh, who was the Pay & Accounts Officer in the Ministry of Health and Family Welfare , New Rajinder Nagar, New Delhi and he had produced the record pertaining to reimbursement of medical bill of accused vide D-17. It was further submitted that as per the claim form submitted by accused, which is part of Ex.PW85/82 (colly) (D-17), the entire amount of Rs.2,34,627/- has been claimed for reimbursement by accused which show that accused had made the entire payment and that is why the said amount was being sought to be reimbursed. Accordingly, it was submitted that the said amount cannot be reduced from the expenditure of accused and accordingly, a prayer was made to reject the contention of Ld.Defence counsel.
FINDING CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 208/248
431. I have considered the rival submissions of respective counsels and have carefully perused the documents regarding medical reimbursement and the evidence led on record.
432. The CBI had examined PW25 Sh.Gajender Singh and PW27 Dr.S.C.Gupta to prove the medical expenditure of Rs.2,34,627/- incurred by accused for his medical treatment at Sir Ganga Ram Hospital, New Delhi. PW25 Sh.Gajender Singh was a witness from Pay & Accounts Office, Ministry of Health and Family Welfare, New Delhi and he had proved the document D-17 vide which medical reimbursement claim of accused of Rs.2,34,627/- was processed.
433. As per the letter Ex.PW25/A (D-17), reimbursement of Rs.96,320/- was only made to accused against the reimbursement claim of Rs.2,34,627/-. Further, the medical reimbursement form, duly signed by accused, is part of Ex.PW85/82 (colly) (D-17) and same shows that accused has claimed the amount of Rs.2,34,627/-. The claim of entire amount of Rs.2,34,627/-by accused shows that he had made the entire payment of the medical bill and that is why he was claiming the said amount from the Government for reimbursement. Had he not made the payment, there was no ground for him to claim the reimbursement from the Government.
434. Further, PW27 Dr.S.C.Gupta, was working as Senior Medical Record Officer, at Sir Ganga Ram Hospital,Rajinder Nagar, New Delhi and during the course CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 209/248 of investigation, he had produced medical documents of accused vide document D-18. PW27 Dr.S.C.Gupta had also proved his letter Ex.PW27/1 (D-18) vide which he provided the medical record of accused to the CBI. The medical record produced by PW27 Dr.S.C.Gupta i.e. (D-
18) nowhere shows that any payment of Rs.2,34,627/- was made by DW5 Sh.Subhash Chander. DW5 Sh.Subhash Chander had deposed that he is the relative of accused. However, none of the documents including the discharge summary has the signatures of DW5 Sh.Subhash Chander. It is not believable that DW5 Sh.Subhash Chander, who had gone to get the accused discharged from the hospital, would not have signed in the discharge summary as representative of accused / patient.
435. On the contrary, discharge summary bears the signature of DW1 ASI Inderjeet Singh, who was Personal Security Officer of the accused. The evidence of DW1 ASI Inderjeet Singh nowhere proves that payment was made by DW5 Sh.Subhash Chander as it has come in his cross examination that no payment was made in his presence. Although DW1 Sh.Inderjeet Singh has deposed regarding DW5 Sh.Subhash Chander coming to the hospital for getting the accused discharged but the evidence of DW1 Sh.Inderjeet Singh in this context is not trustworthy and reliable. The reason for the same is that it has come in the evidence of DW5 Sh.Subhash Chander that he had gone to get the accused discharged from the Ram Manoher Lohia Hospital, New Delhi whereas the fact which has been CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 210/248 proved on record is that accused had taken treatment from Sir Ganga Ram Hospital and not from Ram Manoher Lohia Hospital. Atlhough DW5 Sh.Subhash Chander tried to clarify in his cross examination that he had gone to Sir Ganga Ram Hospital, New Delhi but in the opinion of this court, this correction made in the cross examination by DW5 Sh.Subhash Chander is nothing but an after thought and hence, testimony of DW5 Sh.Subhash Chander is not at all trustworthy and reliable.
436. Another reason for doubting the testimony of DW5 Sh.Subhash Chander is his deposition in his cross examination that he had signed one document at the time of discharge. However, entire medical document including the discharge summary produced by PW27 Dr.S.C.Gupta vide document D-18 do not show any document having the signature of DW5 Sh.Subhash Chander. Therefore, all these facts show that DW5 Sh.Subhash Chander had never visited Sir Ganga Ram Hospital, New Delhi to get the accused discharged or that he had made the payment in cash.
437. Even assuming that DW5 Sh.Subhash Chander had made the payment in cash, then also said payment has been made on behalf of accused as there is no evidence on record to show that DW5 Sh.Subhash Chander had paid the said medical bill amount out of charity or out of love and affection. Therefore, the said expenditure has to be counted against the accused.
438. Another reason which shows that no payment in CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 211/248 cash was made by DW5 Sh.Subhash Chander is the answer given by accused regarding the incriminating evidence put to him pertaining to his medical treatment, while being examined under Section 313 Cr.P.C.
439. In this regard, questions no.103 to 105 were put to accused with regard to his medical bill of Rs.2,34,627/-, and in response to the said questions, accused never took any defence that the said medical bill of Rs.2,34,627/- of Sir Ganga Ram Hospital, New Delhi was never paid by him but was paid by DW5 Sh.Subhash Chander. Therefore, the evidence which has come on record proves beyond reasonable doubt that total medical bill was to the tune of Rs.2,34,627/-, out of which, amount of Rs.96,320/- was reimbursed by the Government of India and remaining amount of Rs.1,38,307/- was the medical expenditure incurred by accused.
EXPENDITURE NO.5 AND 16: PAYMENT MADE OF HOUSE TAX TO NDMC
440. As per serial nos.5 and 16 of para 10.12 of the charge sheet, details have been provided with regard to expenditure incurred by accused towards payment of house tax in respect of Flat No. B-601, Gauri Sadan, 5, Hailey Road, New Delhi and the total amount paid by accused is (Rs. 10,70,899 + Rs.2,70,206/-) = Rs.13,41,105/-.
FINDING
441. The aforesaid payments towards house tax paid by CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 212/248 accused stands duly proved by the witness PW19 Sh.S.K.Malhotra, who was the Senior Assistant, House
-Tax Department, NDMC, New Delhi and he had proved the letter dated 30.09.2008 Ex.PW19/A (D-10) and as per the said letter, details of payment made by accused between 1999-2006 have been provided which are as follows: -
S.No. Year C.R.No. & Date Payments
1. 1998-1999 A/41- 1,70,673/-
20.07.1998
2. 2001-2002 1/79-27.03.2002 2,13,326/-
3. 2004-2005 A/60- 1,13,770/-
13.01.2005
4. 2004-2005 A-50- 56,880/-
14.01.2005
5. 2005-2006 123-27.01.2006 7,86,266/-
442. The aforementioned entries mentioned in letter Ex.PW19/A (D-10) were further corroborated on record by production of Statement of Account of house tax which was exhibited as Ex.PW85/103 (AD-79). Therefore, both the documents i.e. Ex.PW19/A (D-10) and Statement of Account Ex.PW85/103 (AD-79) prove that amount of Rs.13,41,105/-was paid by accused towards the house tax.
EXPENDITURE NO.7: PAYMENT OF TELEPHONE BILLS
443. As per serial no.7 of para 10.12 of the charge sheet, accused had incurred expenditure of Rs.3,29,249/- with CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 213/248 regard to telephone bills installed at his Teja Khera farm house, Sirsa and at his residence in Sirsa during the check period.
Submissions of Ld.Defence counsel and Ld.SPP for CBI
444. It was the submission of Ld.Defence counsel that the expenditure of telephone bills has not been proved on record by the CBI as bills on the basis of which record was prepared, were never produced. It was further submitted that it has come in the evidence of PW39 Sh.K.P.Kalia, Accounts Officer, BSNL, Hisar (Haryana) that he had sent the bills alongwith letter Ex.PW29/A with regard to telephone connection installed at Teja Khera Farm House. However, said bills were never shown to the witness in the court, which shows that record was prepared without there being any bills.
445. It was further submitted that even the details of payment with regard to telephone number 221286 installed at the residence of accused in Sirsa, were never proved on record and the said documents were marked as Mark P- 29/DA and Mark P-29/DA-1. It was submitted that in the light of non-production of bills and payment details not being proved on record, this expenditure was not proved to have been made by accused with regard to his two aforementioned telephone numbers installed at Teja Khera farm house and residential house in Sirsa respectively. Lastly, it was submitted that PW39 Sh.K.P.Kalia was CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 214/248 unable to tell as to who had made the payment. Accordingly, a prayer was made to decrease the said expenditure of Rs.3,29,249/-.
446. On the other hand, it was submitted by Ld.SPP for CBI that payment details were duly mentioned in the letter Ex.PW29/A and the same stands proved as no objection was raised by accused with regard to said letter. It was further submitted that it has come in the cross examination of PW29 Sh.Ramesh Pingal, who was posted as JTO (Recovery), Office of GMTD, Hisar, Haryana that the originals of bills were sent to the accused for payment and they only had the copies of the bills. It was further submitted that it has also come in the evidence of PW29 Sh.Ramesh Pingal that payment details were prepared on the basis of copies of bills. It was further submitted that the evidence of PW29 Sh.Ramesh Pingal was duly corroborated by PW39 Sh.K.P.Kalia, who was the Accounts Officer of BSNL, Hisar and who had deposed that payment details were prepared as per the office records. It was further submitted that it is not in dispute that both the telephone numbers were installed at the residence/farm house of accused and in the natural course of things, accused would have made the payment of the said telephone connections as he was using the same. Therefore, even if PW29 Sh.Ramesh Pingal and PW39 Sh.K.P.Kalia were not able to tell the name of person, who had made the payment, this court can presume that CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 215/248 ordinarily the liability of making the telephone charges was upon the person at whose residence / farm house, telephone connection is installed. Therefore, expenditure of both the telephone numbers has been proved on record by the CBI and said expenditure cannot be decreased.
FINDING
447. I have considered the rival submissions of respective counsels and have carefully perused the record.
448. PW29 Sh.Ramesh Pingal, posted as JTO (Recovery), Office of GMTD, Hisar had proved his letter Ex.PW29/A (D-57) which bears his signature at point Mark "X" and that of PW39 Sh.K.P.Kalia at Mark "Y". The said letter was also duly proved by PW39 Sh.K.P.Kalia, who was the Accounts Officer of BSNL, Hisar. As per letter Ex.PW29/A, accused has made a payment of Rs.1,92,473/- with regard to telephone number 221286 installed at his residence in Sirsa and payment of Rs.1,36,776/-pertaining to telephone number 289277 installed at his Teja Khera farm house, Sirsa during the check period. No objection was taken by the Ld.Defence counsel with regard to letter Ex.PW29/A and with regard to documents showing the details of payment made by accused vide various bills which are exhibited as Ex.PW85/95 (colly) (D-57) pertaining to telephone no.221286 and Ex.PW85/96 (colly) (D-57) pertaining to telephone number 289277. Therefore, they stand proved in the light of judgment of the Hon'ble CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 216/248 Supreme Court of India delivered in R.V.E. Venkatachala Gounder' case (supra).
449. Although, it is true that it has come in the cross examination of PW39 Sh.K.P.Kalia that copies of bills were sent alongwith Ex.PW29/A but they are not part of the judicial record of Ex.PW29/A but still non-production of copies of bills, will not make any difference to the prosecution case as details of payment with regard to telephone numbers pertaining to accused have not been challenged either in the letter Ex.PW29/A (D-57) or in the details of payment Ex.PW85/95 (colly) and Ex.PW85/96 (colly) (D-57) .
450. Further, it has also come in the cross examination of PW29 Sh.Ramesh Pingal that original bills pertaining to the aforementioned two telephone numbers were always sent to the accused for payment. Therefore, even if, CBI had not produced on record the copies of bills, accused, who was in possession of original bills, could have produced the same in order to show that any amount reflected in Ex.PW85/95 (colly) and Ex.PW85/96 (colly) (D-57) shows incorrect payment. However, original bills were not produced on record, which shows that accused never doubted the said payment pertaining to telephones installed at his Teja Khera farm house in Sirsa and at his residential house in Sirsa.
451. The contention of Ld.Defence counsel that payment by the accused was never proved on record in the light of CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 217/248 deposition made by PW29 Sh.Ramesh Pingal and PW39 Sh.K.P.Kalia is required to be rejected. The reason for the same is that accused had never doubted the installation of aforementioned telephones at his Teja Khera residence and Sirsa residence. Therefore, since accused was the consumer of aforementioned telephones, therefore, this court may presume under Section 114 of the Indian Evidence Act, 1872 that the payment of telephone bills would have been made by the accused. The accused could have proved to the contrary by showing that even though telephones were installed at his residences but he was not using the same and the payment was being made by some other person. However, no evidence has been led on record by the accused in this regard. Therefore, this contention is rejected.
452. Further, when the incriminating evidence coming on record, with regard to payment made with regard to telephone nos. 289277 and 221286 was put to the accused vide questions no.113 and 114, while being examined under Section 313 Cr.P.C., accused did not dispute the telephone numbers or the details of payment but offered an explanation that the entire payment was reimbursed by the Government. However, accused led no evidence in his defence to prove that the payment of aforementioned two telephone numbers was reimbursed to him in full by the Government. Therefore, this fact further corroborates the case of CBI that payment of telephone bills was made by CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 218/248 accused.
453. In the light of aforementioned discussion, the CBI has proved that accused had made the payment of Rs.192473 with regard to telephone number 221286 installed at his residence in Sirsa and payment of Rs.136776/- with regard to telephone number 289277 installed at his Teja Khera farm house in Sirsa i.e. total payment of Rs.3,29,249/- during the check period.
EXPENDITURE NO.8: PAYMENT MADE TO DAKSHIN HARYANA BIJLI VITRAN NIGAM
454. As per serial no.8 of para 10.12 of the charge sheet, payment of Rs.1,13,882/- has been shown on account of payment made by accused to Dakshin Haryana Bijli Vitran Nigarm in respect of electricity charges of Chautala Farm House, village Tejakhera, Sirsa.
FINDING
455. It was the contention of Ld.Defence Counsel that letter dated 17.10.2008 (D-30) Mark P-13/1 vide which alleged details of electricity consumption was provided, has not been proved on record. Therefore, the said expenditure incurred is required to be decreased.
456. The said contention of Ld.counsel for accused is required to be rejected as it is true that initially the letter dated 17.10.2008 (D-30) was not exhibited in the evidence of PW13 Sh.Sukhbir Kamboi, who was posted as SDO, CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 219/248 Dakshin Haryana Bijli Vitran Nigam, Sub Division Dabwali, Haryana as said letter was not signed by him but was signed by the Executive Engineer Sh.R.K.Verma at point Mark "X". However, later on, PW56 Sh.R.K.Verma, Executive Engineer, Dakshin Haryana Bijli Vitran Nigam, Dabwali appeared and had duly identified his signature on letter dated 17.10.2008 and accordingly, it was exhibited as Ex.PW56/1 (D-30). Nothing was brought out in his cross examination to dispute the details of payment made vide Annexure "A" Ex.PW95/1 (colly) (D-30).
457. Lastly, PW95 Sh.Dalip Singh, AGM, Chautala Sub Division, Dakshin Haryana Bijli Vitran Nigam had appeared in evidence and had proved the details of energy bill amount paid by accused vide Annexure "A" Ex.PW95/1 (colly) (D-30). It was deposed by PW95 Sh.Dalip Singh that he had given the details of payment received from accused, as per the ledger maintained by them in their office. Accused in the cross examination of PW95 Sh.Dalip Singh had not disputed the details of amount paid by accused vide Ex.PW95/1 (colly) (D-30). Even the accused while being examined under section 313 Cr.P.C., had in response to question no. 115 pertaining to this expenditure, had not disputed the said amount. Therefore, document Ex.PW95/1 (colly) (D-30) proves that accused had incurred an expenditure of Rs,1,13,882/- towards the electricity consumption regarding the electric connection installed at his Teja Khera farm house, Sirsa.
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 220/248 Therefore, this expenditure cannot be decreased as it stands proved on record.
EXPENDITURE NO.9 : PAYMENT MADE TO NDMC IN RESPECT OF B-601, GAURI SADAN, NEW DELHI
458. As per serial no.9 of para 10.12 of the charge sheet, accused had incurred an expenditure of Rs.22,39,871/- with regard to electricity charges made in respect of Flat No.B-601, Gauri Sadan, New Delhi during the check period.
Submissions of Ld.Defence Counsel and Ld.SPP for CBI
459. It was submitted by Ld.Defence counsel that as per the admitted documents on record i.e. Lease Agreement Ex.ADP-1, the flat no. B-601, Gauri Sadan, 5, Hailey Road, New Delhi was rented out by the accused to the Association of Basic Telecom Operators from 01.02.1998 onwards and the said lease was renewed from time to time and lastly, it was renewed vide Lease Agreement dated 14.02.2004 Ex.ADP-4 from 01.02.2004 till 31.01.2007. It was further submitted that as per clause 8 of various Lease Agreements i.e. ADP-1, ADP-3 and ADP-4, the electricity charges with regard to aforementioned flat was required to be paid by the tenant i.e.Association of Basic Telecom Operators. It was further submitted that CBI had also summoned PW8 Sh.S.C.Khanna, Secretary General of CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 221/248 Association of Basic Telecom Operators, who was examined partly in chief wherein he deposed that they were the tenant of accused of Flat No.B-601, Gauri Sadan, 5, Hailey Road, New Delhi. However, the complete evidence of PW8 Sh.S.C.Khanna was not got recorded by the CBI for the reason that his testimony would not be favourable to the case of the CBI. It was further submitted that having regard to the Lease Agreements Ex.ADP-1, Ex.ADP-3 and Ex.ADP-4, it is not believable that the tenant, who is occupying the premises and is consuming electricity, will not be required to pay the electricity charges and same shall be required to be cleared by the owner i.e. accused. Accordingly, it was submitted that CBI had wrongly shown the expenditure of Rs.22,39,871/- and same is required to be decreased.
460. On the other hand, It was submitted by Ld.SPP for CBI that even though it is an admitted case of the CBI that Association of Basic Telecom Operators, were the tenant of accused but still it cannot be presumed that tenant had paid the electricity charges. It was further submitted that the onus was upon the accused to have proved that electricity charges were not paid by the accused but were paid by the tenant i.e. Association of Basic Telecom Operators. It was further submitted that PW37 Sh.S.N.Gupta, had produced the record of electricity charges paid in respect of aforementioned flat during the check period vide Ex.PW37/2 (D-52) and said document CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 222/248 proves that the amount of Rs.22,39,871/- was paid towards the electricity charges. Accordingly, a prayer was made to reject the contention of Ld.defence counsel.
FINDING
461. I have considered the rival submissions of respective counsels and have carefully perused the record.
462. It is an admitted position of the CBI as per para 2 of 16.10.5 of charge sheet that Flat No. B-601, Gauri Sadan, 5, Hailey Road, New Delhi was leased out to Association of Basic Telecom Operators. The said para also refers to the Lease Agreement and the rate of rent being paid by the tenant to the accused. The CBI had also summoned PW8 Sh.S.C.Khanna, the Secretary General of Association of Basic Telecom Operators, who deposed regarding they being the tenant of accused. However, PW8 Sh.S.C.Khanna was partly examined in chief and was deferred for want of documents. Thereafter, CBI chose not to examine PW8 Sh.S.C.Khanna as a witness. Thereafter, documents referred to in the statement of PW8 Sh.S.C.Khanna, were brought on record by the accused by moving an application under Section 91 Cr.P.C. and thereafter, the said documents i.e. Lease Agreements, were admitted by accused. The various lease agreements of Flat B-601, Gauri Sadan, 5, Hailey Road, New Delhi which ware admitted are Ex.ADP-1, Ex.ADP-3 and Ex.ADP-4. These leases further prove that Association of Basic CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 223/248 Telecom Operators was the tenant of accused and the tenancy started from 01.02.1998 and it continued till 31.01.2007. Further, as per clause 8 of the Lease Agreements Ex.ADP-1, Ex.ADP-3 and Ex.ADP-4, the liability to clear the electricity charges was that of the tenant. The electricity charges which were paid in respect of Flat No.B-601, Gauri Sadan, 5, Hailey Road, New Delhi during the check period was proved on record by PW37 Sh.S.N.Gupta, who was the Accounts Officer (Billing) in Office of Director, Commercial, NDMC by producing the details of electricity payments received during the check period vide Ex.PW37/2 (D-52). As per Ex.PW37/2 (D-
52), the total bill amount paid in respect of Flat No. B-601, Gauri Sadan, 5, Hailey Road, New Delhi was to the tune of Rs.22,39,871/-.
463. In his cross examination, PW37 Sh.S.N.Gupta had admitted that from the record, he cannot tell as to who had paid the electricity charges. However, as per clause 8 of the Lease Agreements Ex.ADP-1, Ex.ADP-3 and Ex.ADP- 4, the tenant has specifically agreed to clear the electricity charges. Even otherwise, it is not believable that accused being the owner, will pay the electricity charges, which was being consumed by the tenant. Therefore, having regard to clause 8 of Lease Agreements Ex.ADP-1, Ex.ADP-3 and Ex.ADP-4, it stands proved on record that electricity charges during the check period were paid by the tenant i.e. Association of Basic Telecom Operators. I CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 224/248 do not agree with the Ld.SPP for CBI that onus to prove that electricity charges were paid by the tenant was not discharged by the accused. The reason for the same is that clause 8 of the Lease Agreements Ex.ADP-1, Ex.ADP-3 and Ex.ADP-4 places liability upon the tenant to pay the electricity charges. Lease Agreements Ex.ADP-1, Ex.ADP-3 and Ex.ADP-4 are the admitted documents. Therefore, from the Lease Agreements Ex.ADP-1, Ex.ADP-3 and Ex.ADP-4, accused had discharged the onus that electricity charges were paid by the tenant and not by him.
464. In the opinion of this court, the onus was upon the CBI to have proved on record that despite existence of clause 8 in the Lease Agreements Ex.ADP-1, Ex.ADP-3 and Ex.ADP-4, the liability to pay the electricity charges was that of accused and not of the tenant i.e.Association of Basic Telecom Operators. However, the CBI has led no evidence on record to discharge the burden to prove that notwithstanding Lease Agreements Ex.ADP-1, Ex.ADP-3 and Ex.ADP-4, the electricity charges were cleared by the accused. Although CBI had partly examined PW8 Sh.S.C.Khanna, Secretary General of tenant i.e. Association of Basic Telecom Operators but his evidence was not completely recorded by the CBI. Therefore, this court can raise an adverse inference that if CBI had examined PW8 Sh.S.C.Khanna, then his testimony regarding the payment of electricity charges would not CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 225/248 have been favourable to the case of the CBI.
465. Therefore, the evidence which has come on record, in the light of admitted documents i.e. Ex.ADP-1, Ex.ADP-3 and Ex.ADP-4 and there being no evidence led on record by the CBI to show that despite existence of these lease agreements, electricity charges were cleared by the accused, it stands proved on record that electricity charges worth Rs.22,39,871/- paid during the check period were not the expenditure of the accused but was an expenditure, which was incurred by the tenant i.e. Association of Basic Telecom Operators. Therefore, IO PW85 Sh.Jagroop S.Gusinha had wrongly added this expenditure towards the electricity charges against accused and benefit has to be given to the accused, by reducing the same.
EXPENDITURE NO.10: RECOVERY OF LICENSE FEE DURING JANUARY, 1993
466. As per serial no.10 of para 10.12 of the charge sheet, accused had paid the license fee of Rs.4,898/- during January, 1993 with regard to bungalow No.AB-82, Shahjahan Road, New Delhi.
FINDING
467. Ld.Defence counsel had submitted that said expenditure is required to be decreased as admittedly the said license fee was paid by accused during the pre-check CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 226/248 period. I agree with the submission put forward by the Ld.Defence counsel. The document Ex.PW36/1 (AD-82) proved on record by PW36 Sh.Sanjay Gupta, Assistant Director, Rent Parliament Section, Directorate of Estates, Parliament House Annexe, New Delhi shows that accused had vacated his official bungalow on 28.01.1993 and license fee of Rs.4,898/- was paid in January, 1993 vide Ex.PW36/2 (AD-82). Since this payment was made in pre-check period, therefore, said expenditure of Rs.4,898/- is required to be decreased.
EXPENDITURE NO.11: PAYMENT MADE FOR PURCHASE OF AIR-TICKETS FOR DEL/MCT/DXB/KWI/DXB/DEL
468. As per serial no.11 of para 10.12 of the charge sheet, accused had incurred an expenditure of Rs.44,800/- for purchase of air tickets from M/s.Touch of Class Travels.
Submissions of Ld.Defence Counsel and Ld.SPP for CBI
469. It was submitted by Ld.Defence counsel that air ticket worth Rs.44,800/- was paid by HSIDC and the said fact is proved on record by letter dated 27.04.2009 Ex.PW85/98 (D-77) of Touch of Class Travels, which had issued the air ticket. Accordingly, it was submitted that said expenditure be reduced qua accused.
470. On the other hand, Ld.SPP for CBI had submitted CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 227/248 that there is no proof on record that payment of Rs.44,800/- was made by HSIDC. Accordingly, it was prayed that said contention of Ld.Defence counsel be rejected.
FINDING
471. I have considered the rival submissions and have carefully perused the document D-77 issued by Touch of Class Travels and the said document is exhibited as Ex.PW85/98 (D-77). As per this document, air fare of Rs.44,800/- for the accused with regard to Gulf Air Ticket was paid by HSIDC on 24.03.2004. The said document has also been relied upon by IO PW85 Sh.Jagroop S.Gusinha in his examination-in-chief dated 29.09.2016 and IO PW85 Sh.Jagroop S.Gusinha has also deposed that payment with regard to said ticket was received by Touch of Class Travels from Haryana State Industrial Development Corporation (HSIDC). Therefore, in the light of document Ex.PW85/98 (D-77) and the admission made by IO PW85 Sh.Jagroop S.Gusinha in his examination-in-chief, it stands proved on record that payment for Gulf Air Ticket was not made by accused but was paid by HSIDC. Therefore, this expenditure is required to be decreased from the expenditure of accused.
EXPENDITURE NO.12: PAYMENT MADE TO DOLPHIN TRAVELS FOR PURCHASE OF AIR TICKETS OF LUFTHANSA AIRLINES
472. As per serial no.12 of para 10.12 of the charge sheet, CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 228/248 the expenditure of Rs.1,10,592/- has been shown as expenditure of accused with regard to purchase of air tickets of Lufthansa Airlines.
FINDING
473. To prove the said expenditure, the CBI had examined PW98 Ms.Manjari Gauba, who was working as Manager (Finance and Administration), with Lufthansa Airlines. She had proved her letter dated 30.12.2008 Ex.PW85/99 (D-76) and alongwith the said letter, she had also provided the details of air tickets, the person, who had purchased the tickets and the payment received. As per Ex.PW85/99 (D-76), accused had purchased the tickets on 11.03.2004 by paying cash of Rs.1,10,592/-and the amount of Rs.1,10,592/- paid by accused is further proved by the document Ex.PW85/101 (D-76). Therefore, the evidence of PW98 Ms.Manjari Gauba and the document Ex.PW85/101 (D-76) proves that accused had purchased the air ticket of Lufthansa Airlines by paying the amount of Rs.1,10,592/- in cash.
474. The contention of Ld.Defence counsel that PW98 Ms.Manjari Gaurba had admitted in her cross examination that she did not know as to who had made the payment and whether the tickets were cancelled, rerouted or rescheduled, therefore, payment by accused was not proved, is required to be rejected. The reason for the same is that once it is proved on record that accused had purchased the air ticket of Lufthansa Airlines, then the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 229/248 natural consequence of the same is that accused must have made the payment. If payment was not made by accused or ticket had been cancelled, then the onus had shifted upon the accused to have proved the said fact. However, no evidence has been led on record by the accused to show that despite issuance of ticket in his name, the payment was not made by him or that he had not travelled on the air ticket issued by the Lufthansa Airlines. Therefore, expenditure of Rs.1,10,592/- stands proved on record by the evidence of PW98 Ms.Manjari Gauba and by document Ex.PW85/101 (D-76).
EXPENDITURE NO.13: BANK CHARGES PAID TO SBI CHAUTALA.
475. As per serial no.13 of para 10.12 of the charge sheet, Rs.26,035/- has been shown as expenditure of accused towards the bank charges.
Subissions of Ld.Defenee Counsel and Ld.SPP for CBI
476. It was submitted by Ld.Defence Counsel that to prove the said expenditure, CBI had examined PW66 Sh.Shyam Sunder Chauhan, who had produced on record Statement of Account of accused pertaining to State Bank of India, Branch Chautala, Sirsa and the same was exhibited as Ex.PW66/3 (D-70). It was further submitted that Ex.PW66/3 was a computerized bank statement but CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 230/248 since the same was not accompanied with certificate under Bankers' Book of Evidence Act, 1891 or certificate under Section 65B of the Indian Evidence Act, 1872, the aforesaid statement was inadmissible and hence, bank charges as reflected in Ex.PW66/3 (D-70) were not proved. Accordingly, it was prayed that said expenditure be reduced.
477. On the other hand, Ld.SPP for CBI had submitted that no objection was taken by the accused at the time of tendering of the Statement of Account Ex.PW66/3 (D-70) and, therefore, said document stands admitted in evidence and the said document proves the bank charges of Rs.26,035/-. Accordingly, a prayer was made to reject the said contention of Ld.Defence counsel.
FINDING
478. I have carefully perused the evidence of PW66 Sh.Shyam Sunder Chauhan, who was a witness from SBI, Chautala, Sirsa and when the computerized Statement of Account Ex.PW66/3 (D-70) was tendered in evidence, specific objection was taken by the Ld.Defence counsel regarding its admissibility.
479. In the absence of certificate under the Bankers' Book of Evidence Act, 1891 or under the Indian Evidence Act, 1872 and to meet the objection raised by Ld.Defence Counsel, the CBI had moved an application to lead legally admissible evidence and the said application was allowed vide order dated 09.02.2017. Thereafter, CBI had again CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 231/248 summoned bank witness i.e. PW106 Sh.Narain Singh from SBI, Chautala alongwith the duly certified Statement of Account. PW106 Sh.Narain Singh had produced on record the Statement of Account of accused which was exhibited as Ex.PW106/2 and relevant certificate under Section 2A of the Bankers' Book of Evidence Act, 1891 and certificate under Section 65B of the Indian Evidence Act, 1872 was also brought on record and was exhibited as Ex.PW106/5 and Ex.PW106/6.
480. As per the certified, Statement of Account of accused Ex.PW106/2 [which is identical to Statement of Account Ex.PW66/3 (D-70)], twice the payment of Rs.12,560/- was debited on 11.02.2006 and against the said entries, remarks "Charges" are reflected and third payment of Rs.915/- was also debited on 11.02.2006 with the remarks of "charges" and if all the three payments are added, they come to Rs.26,035/-, which is the exact amount as shown in the charge sheet. Therefore, CBI had proved the expenditure of bank charges of Rs.26,035/- on record and same cannot be decreased.
EXPENDITURE NO.14: TOTAL TAXES PAID AS PER AVAILABLE INCOME TAX RETURNS.
481. As per serial no.14 of para 10.12 of the charge sheet, total income tax paid by accused during the check period was to the tune of Rs.36,28,955/- and the said figure was arrived at on the basis of his various income tax returns.
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 232/248 Submissions of Ld.Defence counsel and Ld.SPP for CBI
482. The Ld.Defence counsel has only submitted that he is not disputing the income tax paid by accused during the check period vide his various income tax returns but the amount of tax calculated by the IO is incorrect and if the Ld.Court peruse the various income tax returns, it will come to its knowledge that the submission made by Ld.Defence counsel is correct. Accordingly, it was prayed that correct amount of tax paid by accused be taken into account as expenditure of accused and not as mentioned in the charge sheet.
483. On the other hand, Ld.SPP for CBI submitted that the total tax paid by accused during the check period has been calculated by the IO, on the basis of various income tax returns of the accused and the figure arrived at is correct. Accordingly, it was prayed that contention of Ld.Defence counsel be rejected.
FINDING
484. In order to appreciate the contentions of Ld.respective counsels, I have carefully perused the various income tax returns of accused, which are part of D- 33 and D-34. The income tax paid by accused during the relevant Financial Years are being reproduced hereinbelow:
S.No. Financial Total Income D Exhibit Year Tax Paid Number
1. 1999-2000 4,19,639/- D-34 Ex.PW85/55 CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 233/248
2. 2000-2001 4,17,960/- D-33 Ex.PW85/57
3. 2001-2002 3,67,943/- D-33 Ex.PW85/59
4. 2002-2003 6,09,701/- D-33 Ex.PW85/61
5. 2003-2004 6,33,671/- D-33 Ex.PW85/63
6. 2004-2005 6,37,017/- D-34 Ex.PW85/67
7. 2005-2006 3,20,544/- D-33 Ex.PW85/69 Total 34,06,475/-
485. It has come in the evidence of IO PW85 Sh.Jagroop S.Gusinha that the income tax for the Financial Year 2001-
2002 was taken as Rs.5,90,423/- by adding amount of Rs.2,22,480/- paid by accused towards the house tax to the income tax of Rs. 3,67,943/-.
486. In the opinion of this court, the calculation arrived at by IO PW85 Sh.Jagroop S.Gusinha for the Financial Year 2001-2002 based upon the income tax computation chart Ex.PW85/60 (D-33) is an incorrect one. The reason for the same is that payment of house tax made by accused of Rs.2,22,480/- can never be added to the income tax. As per the Income Tax Law, the payment made by accused towards the house tax is required to be deducted from the income received towards rent and thereafter, tax is required to be paid on the rent. Further, IO PW85 Sh.Jagroop S.Gusinha has also shown the said amount towards expenditure on account of house tax for the Financial Year 2001-2002 at serial no.16 of para 10.12 of the charge sheet as expenditure of accused. Therefore, when IO PW85 Sh.Jagroop S.Gusinha, had already taken CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 234/248 separately the said expenditure of house tax at serial no.16 of para 10.12 of the charge sheet and as discussed hereinabove since house tax is not part of income tax, therefore, IO PW85 Sh.Jagroop S.Gusinha had wrongly added Rs.2,22,480/- in the income tax paid for the Financial Year 2001-2002. Hence, this amount of Rs.2,22,480/- paid by accused towards house tax is required to be decreased from the income tax paid by accused during the check period.
487. Accordingly, this court has only taken into account the income tax paid for various Financial Years while calculating the total income tax paid during check period. Therefore, total income tax paid by accused during the check period is to the tune of Rs.34,06,475/- and not Rs.36,28,955/- as per the charge sheet. Hence, expenditure of Rs.2,22,480/- is required to be decreased from the income tax.
EXPENDITURE NO.15: MEMBERSHIP FEE AND ENTRANCE FEES FINDING
488. As per serial no.15 of para 10.12 of the charge sheet, accused had incurred an expenditure of Rs.6,400/- on account of membership fee of India Habitat Centre, New Delhi. To prove the expenditure incurred on Membership Fee and Entrance Fee, the CBI had examined PW22 CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 235/248 Sh.Prabhakaran, who was posted as Controller of Accounts in the India Habitat Centre, New Delhi. PW22 Sh.Prabhakaran deposed that accused was a member of India Habitat Centre, New Delhi from 06.02.2001 till 06.02.2006. He also proved his letter dated 08.04.2008 (AD-83) vide which he had sent information regarding the details of payment received from accused and said letter was exhibited as Ex.PW22/1 (AD-83). The details of payment received from accused was exhibited as Ex.PW85/102 (D-83) and it shows that apart from entrance fee of Rs.1,000/-, accused had also made annual subscription charges of Rs.5,400/-. Therefore, total amount paid by accused of Rs.6,400/- with regard to membership fee of India Habitat Centre, New Delhi stands proved on record.
EXPENDITURE OF SMT.SNEH LATA (WIFE OF ACCUSED)
489. As per serial nos.17 to 22 of para 10.12 of the charge sheet, the CBI has shown the expenditure incurred by Smt.Sneh Lata with regard to payment made to Insurance company, income tax payment, repayment of car loan, salary, payment to different travel agents on account of purchase of air tickets and total expenditure calculated is of Rs.17,85,691/-.
Submissions of Ld.Defence Counsel and Ld.SPP for CBI CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 236/248
490. Ld.Defence counsel, during the course of arguments, had not disputed the expenditure nos.17 to 22 of para 10.12 of the charge sheet but has submitted that the expenditure of wife of accused cannot be taken as expenditure of accused as there is no connected evidence to show any linkage of income / expenditure and assets of Smt.Sneh Lata with that of accused. It was further submitted that Smt.Sneh Lata is an independent person and has got her independent income on which she is paying her income tax. Therefore, expenditure incurred by her cannot be taken as expenditure of accused. It was further submitted that even the expenditure nos.21 and 22 of para 10.12 of the charge sheet have not been proved on record.
491. In the light of argument of Ld.Defence counsel, expenditure nos.21 and 22 of para 10.12 of the charge sheet are being taken up first for decision.
EXPENDITURE NO.21: PAYMENT OF RS.3,85,712/- MADE BY MRS. SNEH LATA TO M/S NARULA TRAVELS (P) LTD.
Submissions of Ld.Defence Counsel and Ld.SPP for CBI
492. It was submitted by Ld.Defence counsel that said expenditure of Smt.Sneh Lata is shown on account of purchase of air tickets from M/s.Narula Travels Pvt.Ltd.
493. It was submitted that CBI had examined PW30 CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 237/248 Sh.Raman Narula, Director of M/s.Narula Travels Pvt.Ltd. and he has deposed in his cross examination that all the payments were made by HSIDC and no cheques were drawn from the account of O.P.Chautala. Accordingly, it was submitted that the said expenditure has been wrongly shown to have been incurred by Smt.Sneh Lata. Accordingly, a prayer was made to decrease the same.
494. On the other hand, it was submitted by Ld.SPP for CBI that although PW30 Sh.Raman Narula had admitted in his cross examination regarding payment received from HSIDC with regard to delegation but he has nowhere deposed that Smt.Sneh Lata was member of delegation on whose behalf HSIDC had reimbursed the payment of air tickets. It was further submitted that PW30 Sh.Raman Narula had proved the document Ex.PW30/2 (D-75) and in the said document, at page no.3, list of members of delegation has been provided and the name of Smt.Sneh Lata is absent from the said list. It was further submitted that at page no.2, PW30 Sh.Raman Narula had provided the details of payment received from HSIDC through cheques drawn on IDBI bank. It was further submitted that at page no.4 of Ex.PW30/2 (D-75), details of payment received from Smt.Sneh Lata has been provided at X1, X2 and X3 and the said document has been exhibited as Ex.PW85/105 in the evidence of PW85 Sh.Jagroop S.Gusinha.
495. It was further submitted that PW85 Sh.Jagroop CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 238/248 S.Gusinha has explained in his evidence recorded on 25.10.2016 as to how he had arrived at the amount of Rs.3,85,712/-. It was further submitted that as per Ex.PW85/105 (D-75), the payment of Rs.2,50,000/- at point X1 was made by Smt.Sneh Lata from her account of Standard Chartered Bank and remaining two payments at points X2 and X3 were made in cash. It was further submitted that since HSIDC was having its account in IDBI Bank and since HSIDC was a Government Institution, therefore, it could not have made the payment in cash or from the account of Standard Chartered Bank as it was having its account in IDBI Bank. Accordingly, it was submitted that said expenditure was duly proved on record and the same cannot be decreased.
FINDING
496. I have considered the rival submissions and have carefully perused the evidence of PW30 Sh.Raman Narula and document D-75.
497. Although PW30 Sh.Raman Narula in his cross examination had deposed that the entire payment for the tickets as mentioned in Ex.PW30/2 was made by HSIDC but the said fact was deposed by PW30 Sh.Raman Narula based upon his memory and there was no certainty in his deposition. The best evidence regarding payment was the letter sent by PW30 Sh.Raman Narula dated 10.04.2008 Ex.PW30/2 (D-75). The said letter Ex.PW30/2 (D-75) has been admitted to have been sent by PW30 Sh.Raman CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 239/248 Narula to the CBI. In the said letter Ex.PW30/2 (D-75), PW30 Sh.Raman Narula has mentioned that payment was received not only from HSIDC but from other person also. Therefore, from the letter Ex.PW30/2 (D-75), it stands proved on record that payment for sale of air tickets was not received only from HSIDC, but was received from other persons also.
498. Further, the payment received from HSIDC has been detailed out at page no.2 and all the payments are received through cheques drawn on IDBI Bank. Page No.3 of Ex.PW30/2 (D-75) shows the list of delegates and in the said list, the name of Smt.Sneh Lata is missing. Therefore, the aforesaid evidence proves on record that HSIDC had reimbursed the tickets for the delegation and Smt.Sneh Lata was not the member of the delegation. Therefore, HSIDC had never reimbursed her ticket and the oral deposition made by PW30 Sh.Raman Narula is required to be ignored in the light of document Ex.PW30/2 (D-75), having regard to Section 91 and 92 of the Indian Evidence Act, 1872.
499. Further, PW30 Sh.Raman Narula had himself provided the payment received from other persons at page no.4 of Ex.PW30/2 (D-75) which was exhibited as Ex.PW85/105. With regard to Smt.Sneh Lata, payment received has been reflected at points X1, X2 and X3. Payment at points X2 and X3 are in cash whereas the payment at point X1 is through cheque drawn on the CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 240/248 Standard Chartered Bank. These payments at points X2 and X3 of Ex.PW85/105 could not have been made by HSIDC as it was Government Department and court can take judicial notice of the fact that Government Department do not make payment in cash.
500. Further, as per page no.2 of Ex.PW30/2 (D-75), payments were received from HSIDC through cheques drawn on IDBI Bank whereas payment at X1 of Ex.PW85/105 was made through cheque by Smt.Sneh Lata drawn on Standard Chartered Bank, which was not the banker of the HSIDC. Therefore, from Ex.PW85/105, it stands proved on record that payment was made by Smt.Sneh Lata, against purchase of air tickets.
501. Further, the payment at points X2 and X3 received in cash is to the tune of Rs.2,39,729/- and Rs.1,51,560/- respectively. IO PW85 Sh.Jagroop S.Gusinha, in his examination in chief recorded on 25.10.2016, had explained that since payment at point X2 was received on account of four persons, therefore, the amount of Rs.2,39,729/- was divided by 4 and the share of Smt.Sneh Lata comes to Rs.59,932/-. Similarly, payment reflected at point X3 of Rs.1,51,560/- was received on account of two persons and the share of Smt.Sneh Lata was arrived at by dividing the said amount by 2 which comes to Rs.75,780/-. Therefore, if the entire amount paid by Smt.Sneh Lata mentioned at points X1, X2 and X3 of Ex.PW85/105 i.e. of Rs.2,50,00/-, Rs.75,780/-and Rs.59,932/-is added, then CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 241/248 it comes to Rs.3,85,712/-, which is the exact amount reflected in the charge sheet. Therefore, this expenditure has been proved on record by the CBI to have been incurred by Smt.Sneh Lata, wife of accused.
EXPENDITURE NO.22: PAYMENT OF RS.7,54,333/- MADE TO DIFFERENT TRAVEL AGENTS FOR PURCHASE OF AIR TICKETS OF LUFTHANSA AIRLINES
502. As per serial no.22 of para 10.12 of the charge sheet, CBI has shown an expenditure of Rs.7,54,333/-on account of purchase of air tickets of Lufthansa Airlines.
Submissions of Ld.Defence Counsel and Ld.SPP for CBI.
503. It was submitted by Ld.Defence counsel that details of tickets and payment produced by PW98 Ms.Manjari Gauba from the Lufthansa Airlines have not been proved on record as they are photocopies. Therefore, entire expenditure of Rs.7,54,333/- is required to be decreased.
504. On the other hand, it was submitted by Ld.SPP for CBI that no objection was taken by Ld.Defence counsel when PW98 Ms.Manjari Gauba had tendered in evidence details of tickets vide Ex.PW85/99 (D-76) and the payment received from Smt.Sneh Lata vide documents Ex.PW85/106, Ex.PW85/107, Ex.PW85/108 and Ex.PW85/109. Therefore, these documents are admissible and they prove the expenditure of Smt.Sneh Lata on CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 242/248 account of purchase of air tickets of Lufthansa Airlines. Hence, the said expenditure cannot be reduced.
FINDING
505. I have considered the rival submissions of respective counsels and have carefully perused the evidence of PW98 Ms.Manjari Gauba as well as the document D-76.
506. The CBI had examined PW98 Ms.Manjari Gauba, who was the Manager (Finance and Administration) with Lufthansa Airlines and she had supplied the details of tickets vide Ex.PW85/99 (D-76) purchased by Smt.Sneh Lata and the details of payment were made available to the CBI vide Ex.PW85/100 to Ex.PW85/109. When the aforementioned documents i.e. Ex.PW85/99 and Ex.PW85/100 to Ex.PW85/109 were exhibited by PW98 Ms.Manjari Gauba, no objection was taken by the Ld.Defence counsel regarding their admissibility. Therefore, the aforementioned documents are admissible in the light of judgment delivered by the Hon'ble Supreme Court of India delivered in R.V.E. Venkatachala Gounder's case (supra).
507. As per Ex.PW85/99 (D-76), Smt.Sneh Lata has purchased four tickets vide entry at serial no.6, 10 to 12 by making payment in cash. The details of tickets as aforementioned tally with the payment received which are exhibited as Ex.PW85/106 to Ex.PW85/109. Further, payment of Rs.27,638/- vide Ex.PW85/106, payment of Rs.46,304/-vide Ex.PW85/107, payment of Rs.3,00,633/-
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 243/248 vide Ex.PW85/108 and payment of Rs.3,79,758/-vide Ex.PW85/109, were received from Smt.Sneh Lata in cash against sale of air tickets. If the aforementioned amounts are added, then it comes to Rs.7,54,333/-, which is the exact amount mentioned in the charge sheet. Hence, this expenditure also stands proved by the CBI to have been incurred by Smt.Sneh Lata on account of purchase of air tickets. Therefore, in the light of aforementioned discussion, the entire expenditure of Smt.Sneh Lata of Rs.17,85,691/-was proved on record by the CBI.
508. Now, the next question arises is whether entire expenditure of Smt.Sneh Lata is required to be decreased from the expenditure of accused or not? In this regard, I agree with the submission put forth by the Ld.Defence counsel that the income and expenditure of Smt.Sneh Lata cannot be added to the income and expenditure of accused as Smt.Sneh Lata was having separate source of income and was also an income tax payee. This court has already noted the aforementioned fact and accordingly, after taking her income and expenditure into account, has held that Smt.Sneh Lata had sufficient net income to purchase Mercedes Benz Car bearing Registration No. HR-22 D 4977. Accordingly, value of Mercedes Benz Car was decreased from the movable assets of the accused acquired during the check period. Hence, said expenditure of Rs.17,85,691/-cannot be added to the expenditure of accused and is required to be decreased.
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 244/248 NON-VERIFIABLE EXPENDITURE
509. As per para 10.12 of the charge sheet, the non- verifiable expenditure has been taken as Rs.90,85,923/-. The said calculation has been arrived at on the basis of 1/3rd of net income of accused and his family.
510. Since I have already come to the conclusion that income and expenditure of Smt.Sneh Lata are required to be decreased from the income and expenditure of accused, therefore, the non-verifiable expenditure is required to be recalculated based upon the net income of accused only.
511. The total gross income of accused, which has been proved on record is Rs.2,73,27,127/-. The total income tax paid by accused is to the tune of Rs.34,06,475/-. Therefore, net income of accused is [Rs.2,73,27,127/- (-) Rs.34,06,475/-] = Rs.2,39,20,652/-. 1/3rd of the said amount comes to Rs.79,73,551/-. Therefore, the non- verifiable expenditure of accused has to be taken as Rs.79,73,551/- instead of Rs.90,85,923/-. Accordingly, Rs.11,12,372/- is required to be decreased from the non- verifiable expenditure.
512. In the light of aforementioned discussion, the total expenditure, as mentioned in the charge sheet, is required to be decreased as follows:--
Total Serial No. of Amount to be Total Expendi-
Expenditure Expenditure (Para reduced (Rs.) ture proved
as per 10.12 of the (Rs.)
charge sheet chargesheet) and Name
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 245/248
(Rs.) of the Expenditure
1,91,39,213/- 9. 22,39,871/-
Payment made to NDMC
in respect of B-601,
Gauri Sadan, New Delhi.
10. 4,898/-
Recovery of license fee
during January, 1993
1,91,39,213/-
11. 44,800/-
Payment made for (-)
purchase of air-tickets
for
DEL/MCT/DXB/KWI/D 54,10,112/-
XB/DEL =
14. 2,22,480/- 1,37,29,101/-
Total taxes paid as per
available income tax
returns.
17 to 22 (Expenditure 17,85,691/-
amount of Smt.Sneh
Lata)
Non-verifiable
90,85,923/-
expenditure (1/3rd)
(minus)
79,73,551/- =
Rs.11,12,372/-
Total 54,10,112/-
CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 246/248
513. Therefore, total expenditure of accused proved on record is 1,37,29,101/-.
514. In the light of aforementioned discussion, based upon the evidence which has come on record, the following assets, income and expenditure have been proved on record of accused during the check period i.e. 24.05.1993 till 31.05.2006.
S.No. Assets Value (Rs.)
1. Value of Assets at the beginning 3,10,011/-
of the check period
2. Value of Assets, both immovable 2,39,72,070/-
and movable, acquired during (Immovable) + the check period 1,80,54,418/- (Movable) = 4,20,26,488/-
3, Income of the accused during 2,73,27,127/-
the check period.
4. Expenditure of the accused 1,37,29,101/ during the check period.
CALCULATION OF DA
515. The disproportionate assets acquired by the accused during the check period can be calculated as follows:
DA = Rs.4,20,26,488/- (Statement "B" i.e. Assets CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 247/248 acquired during the check period) (-) Rs.3,10,011/- (Statement "A" i.e. Assets at the beginning of the check period) (+) Rs.1,37,29,101/- (Statement "D" i.e. Expenditure during the check period) (-) Rs.2,73,27,127/- (Statement "C" i.e. Income during the check period) = Rs.2,81,18,451/- (Rupees Two Crores Eighty One Lac Eighteen Thousand Four Hundred and Fifty One only).
516. The Percentage of DA acquired by accused during check period can be calculated as follows: -
Rs.2,81,18,451/- (DA) X 100 = 102.89% (Rounded off Rs.2,73,27,127/-- (Income) to 103%)
517. Therefore, disproportionate assets acquired by accused during the check period were to the tune of 103% of the known sources of his income. Accused has failed to satisfactorily account for such dis-proportionality by proving his source of income or means by way of which, he acquired assets during the check period. Hence, accused Om Prakash Chautala is convicted for the offence under Section 13(1)(e) read with 13(2) of the PC Act.
Announced in the open court Dated: 21.05.2022 (Vikas Dhull) Special Judge (PC Act) (CBI)-23 (MPs/MLAs Cases) RADC, New Delhi CC No. 57/2019 CBI Vs. Om Prakash Chautala Page: 248/248