Delhi District Court
Cbi vs Parmod Kumar Jain, on 24 December, 2021
IN THE COURT OF SH.SHAILENDER MALIK, SPECIAL
JUDGE (PC ACT), CBI, COURT NO.407, ROUSE AVENUE
COURT, NEW DELHI
RC No. 2011-A-0025/CBI, ACB
CC No. 40/2019
U/s 13 (2) r/w 13 (1) (e) of PC Act 1988
CNR No.DLCT110000872019
CBI VERSUS Parmod Kumar Jain,
Son of late Sh. Khilar
Chand Jain, R/o B-23,
Sangam Apartment,
Sector-IX, Rohini, Delhi-
110085.
Date of Institution : 06.01.2016
Date of judgment reserved : 13.12.2021
Date of judgment pronounced : 24.12.2021
JUDGEMENT
1. Accused Pramod Kumar Jain is facing trial for offence u/s 13 (2) r/w 13 (I) (e) of Prevention of Corruption Act, 1988 with the allegations that accused was found in possession of assets in disproportionate to his known sources of income during the check period.
2. Facts as drawn from the charge sheet are that in an another case RC No. DAI-2011-A-2014 when a search was conducted on 16.9.2011 at the residential premises of accused Parmod Kumar Jain at B-23, Sangam Apartments, Sector-9, Rohini, Delhi, beside different documents seized, inventory of household items, cash amount of Rs.9,36,300/- was recovered from his house. Accused CC No.40/2019 CBI vs. Parmod Kumar Jain Page 1 Parmod Kumar Jain was working as Superintending Engineer (SE) in Delhi Jal Board at the relevant time.
3. After scrutiny of documents seized, CBI registered the present RC No. 2011-A-0025/CBI/ACB on 29.11.2011 with the allegations that accused Parmod Kumar Jain being a public servant was found to be in possession of assets worth Rs.66,71,253/- for period from November 1987 to September 2011. Whereas during the said period his income/savings was of Rs.75,32,852/-, and deducting the expenditure of Rs.40,26,390/- there was only a saving of Rs.35,06,462/-. As such (Rs.66,71,253/- minus Rs.35,06,462/-) assets worth Rs.31,64,791/- were disproportionate to his known sources of income.
4. After the registration of RC, investigation was carried out. It is matter of record that accused Parmod Kumar completed his B.Tech (Civil Engineering) in 1985 and thereafter he worked as site engineer in Hans Construction Company and Bharat Construction Corporation Ltd from September 1985 to October 1987. On 2.11.1987, accused Parmod Kumar Jain joined Delhi Jal Board as J.E. Later in his service he was promoted as A.E. in August 1989 and was further promoted as Executive Engineer in March 2000 and then promoted as Supdt. Engineer in February 2013. It also came in the investigation that accused Parmod Kumar Jain married to Ms. Neelam Jain d/o Shree Kumar Jain in November 1988. Wife of accused completed M.A. in History, from Meerut University in 1991.
5. It came in the investigation that wife of the accused Ms. Neelam Jain has also been income tax assessee since 1993-94 and tuition fee, rent, interest dividends etc has been her income.
CC No.40/2019 CBI vs. Parmod Kumar Jain Page 2 Accused and his wife have two children elder being daughter Ms. Priyanshi Jain born in September 1990 and younger being son namely Sanchit Jain born in September 1995. It also came in the investigation that father-in-law of accused Parmod Kumar Jain namely Jintender Kumar Jain had also worked as A.E., in Irrigation Department, UP and retired from his services in year 2006.
6. During the entire investigation, on the basis of different documents examined, assets, expenditure and income of accused Parmod Kumar Jain and of his family members was calculated for check period i.e. November 1987 to September 2011. Taking into consideration the amount of income, accused Parmod Kumar Jain was drawing prior to joining DJB the value of his assets at the beginning of check period was fixed to be Rs. 40,000/-. The disproportionate assets of accused as mentioned in the charge- sheet has been noted as below:
Assets before check period (A) =Rs.40,000 Total assets at end of check period (B) =Rs.83,51,423
Assets acquired during check period (B-A) =Rs.83,11,423 Total income during check period (C) =Rs.1,05,94,128 Expenditure Statement (D) =Rs.46,37,977 Likely Savings (C-D) =Rs.59,56,151 Thus, the quantum of DA =Total Assets - Likely savings =Rs.83,11,423/-(-) Rs.59,56,151/-
=Rs.23,55,272/-
Percentage of DA= DA X 100 =22.23%
Income
7. Initially, CBI filed the closure report on the ground that CC No.40/2019 CBI vs. Parmod Kumar Jain Page 3 evidence collected during the investigation was not convincing and amount of disproportionate assets was likely to decrease, in the light of the observation of Hon,ble Supreme Court in Krishna Nand Agnihotri Vs State of M.P. In the closure report CBI further mentioned that in respect of recovery of Rs.9,36,300/- from the house of accused, brother-in-law of accused namely Naveen Jain has staked his claim over the said amount.
8. Such closure report was however not accepted by ld. Predecessor of this court and vide order dated 21.1.2015 CBI was directed to have a re-look on the matter and to take the steps in accordance with the law. In compliance to such directions, matter was examined again and then CBI filed the charge sheet in court on 06.01.2016 on the similar evidence and figures of disproportionate assets as noted above.
9. Statement-A i.e. the amount of Assets of Accused prior to check period was assessed to be Rs.40,000/-. In the charge sheet in Statement-B details of different assets of the accused and his family members accumulated during the check period have been given. I would discuss those details, item wise later in the judgment. In Statement-C details have been given about the different heads of income of Accused and his family members, during the check period. In Statement-D details have been given about the expenditure during the check period. For the purpose of calculating the amount of disproportionate assets, if any, the expenditure would be deducted from the total income accrued during the check period (C-D) to assess the net savings or the amount accused could accumulate the assets.
10. Taking into consideration the entire facts as come on the record, this court by order dated 8.11.2019 ordered for framing CC No.40/2019 CBI vs. Parmod Kumar Jain Page 4 the charges against the accused for offence u/s 13 (1) (e) of Prevention of Corruption Act. After taking note of each of the items of assets, income and expenditures as well as additional facts came on the record, this court concluded the percentage of DA was found to be 18.71% as against 22.23% with following calculation.
(A)Assets before check period: Rs.40,000/- (B)Total assets at the end of check period: Rs.83,51,423/-
(Statement 'B') Assets acquired during check period: Rs.83,11,423/-(B-A) (C)Total income during check period: Rs.1,09,08,157/-
(Statement 'C') (D)Expenditure during check period: Rs.44,66,140/-
(Statement 'D') (E)Likely saving (Rs.1,09,08,157-Rs.44,66,140): Rs.62,70,220/-(C-D) (G)Quantum of DA (Rs.83,11,423 - Rs.62,70,220): Rs.20,41,203/- (H)Percentage of D.A. DAX 100/Income = 18.71%
11. Charges were framed against the accused for offences u/s 13 (1) (e) r/w 13 (2) of P.C. Act, to which accused Parmod Kumar Jain pleaded not guilty and claimed trial.
12. Since, most of the items in Statement-A i.e. assets, Statement-B i.e. income and Statement-C i.e. expenditure as mentioned in the charge sheet filed by the CBI were not disputed by the accused. There has been dispute only to some of the items of Statement-A, B and C, which would be discussed later in the judgment. Therefore, accused had admitted most of the documents relied upon by the CBI as per his statement recorded u/s 294 Cr.P.C. on 19.11.2019 and 27.11.2019. Those admitted CC No.40/2019 CBI vs. Parmod Kumar Jain Page 5 documents are Ex.P-1 to Ex.P-55 as well as from Ex.P-56 to Ex.P-110.
13. In order to substantiate the case of the prosecution, CBI has examined 18 witnesses. PW1 is Keshav Chandra who was CEO of Delhi Jal Board in year 2015 and deposed that he being CEO in DJB and Disciplinary Authority of accused Parmod Kumar Jain, the then Supdt. Engineer in DJB, after going through the charge sheet, evidence and other material as placed before him, accorded sanction for prosecution of accused Parmod Kumar Jain by sanction order dated 25.11.2015 Ex.PW1/A. PW2 is Sanjay Gupta who deposed that he was working as Joint Director, Vigilance, Delhi Jal Board. PW2 states that on receipt of necessary material, evidence and charge sheet from CBI for the purpose of according of sanction for prosecution of accused Parmod Kumar Jain, he put up entire material before CEO Sh. Keshav Chandra who after considering the material, accorded the sanction for prosecution of accused. PW2 states that he by forwarding letter dated 26.11.2015 Ex.PW2/A addressed to SP, CBI, ACB sent the sanction order to CBI.
14. PW3 is Hari Om Aggarwal who stated that he formed/started a company by name M/s D.N. Kansal, in year 1995 in which he was Director beside Satya Prakash Goyal. PW3 stated that his company was carrying on business of sale and purchase of shares as broker in Delhi Stock Exchange. Since in year 2001, Delhi Stock Exchange was closed, PW3 stated to have sold the company to one Mahender Kumar and his associates, in August/September 2002. PW3 states that he handed over the letter dated 29.4.2013 to CBI in this regard which is Ex.PW3/A.
15. PW4 is Ajay Kumar Gautam who deposed that in CC No.40/2019 CBI vs. Parmod Kumar Jain Page 6 September 2011 he along with one Mange Ram joined CBI investigation when they were asked to join as a witness to the search proceedings. PW4 states that he along with Mange Ram joined the CBI team and went Sector-9 Rohini, Sangam Apartment for that purpose. PW4 says that he does not remember the house number of that apartment, where CBI team along with them went for search proceedings. PW4 says that said house was of accused P.K. Jain and after reaching in that house, CBI officials introduced themselves and informed about the purpose of their visit. Thereafter, they carried out the search proceedings in his presence and of Mange Ram.
16. PW4 further deposes that CBI officials seized certain files, household articles, jewellary as well as they also recovered a cash amount of more than Rs.9 Lacs from Almirahs in the rooms of house of Mr. Jain. PW3 proved the search list dated 16.9.2011 Ex.PW4/A. He also proved observation-cum-inventory memo Ex.PW4/B, list of jewelery prepared by Government Valuer Ex.PW4/C.
17. PW5 is Mange Ram who has been also independent witness to the search proceedings and has deposed, more or less similar facts as deposed by PW4. PW5 states that he accompanied Ajay Kumar Gautam (PW4) to CBI office in November 2011. PW5 says that when they reached CBI office, they were informed to participate in raid proceedings as witness. Witness states that they had gone to the area of Rohini, in a society by name Sangam Apartment, and they entered in the house of accused Parmod Kumar Jain, where the search proceedings were carried out. PW5 says that during the search, one packet of currency notes of cash amount of Rs.9,36,000/-
CC No.40/2019 CBI vs. Parmod Kumar Jain Page 7 was recovered from that house besides jewelery articles and other documents. PW5 also referred to documents Ex.PW4/A to C.
18. PW6 is R.L. Yadav, DSP, CBI. Who states that in year 2011 while he was posted as Inspector in ACB, Delhi, investigation of present RC dated 29.11.2011 was entrusted to him after the registration of case against accused P.K. Jain for allegedly possessing assets disproportionate to his known sources of income. PW6 says that said FIR was registered on the complaint of Inspector Anand Swaroop and after FIR investigation was entrusted to him. PW6 states that he collected documents from bank, office of Delhi Jal Board of accused as well as other documents provided to him by the accused, when he was called upon to explain about his source of income. PW6 stated to have recorded statements of different witnesses and referred to different documents seized by him during the investigation which are Ex.PW6/A to PW6/D and other documents admitted by the accused Ex.P-1 to P-7, P-31, P-67 to P-90.
19. PW7 is P. Shadang, DSP, CBI who states that on 18.9.2012 investigation of this case was transferred to him from R.L. Yadav, then inspector and later on 20.9.2012 investigation was transferred from him to S.K. Sinha, then DSP and he accordingly handed over the file of this case to him on 21.9.2012. PW8 is Sanjay Kumar Sinha who stated that he had partly investigated the present case from September 2012 to January 2013. In January 2013 investigation was handed over to Inspector Anil Bisht. PW8 says that during his investigation he seized certain documents from Assistant Manager, SBI, D.C. Chowk, Rohini vide production-cum-seizure memo dated 5.11.2012 Ex.P-66.
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20. PW9 is Anil Bisht who stated that while he was posted as Inspector, ACB, CBI, investigation of this case was transferred to him in January 2013 and later when he was transferred to Vigilance Cell in January 2014, investigation was transferred to Inspector Shitanshu Sharma. PW9 states that during investigation he collected documents from different offices and seized vide different seizure memos. PW9 further stated that he recorded statements of 30 witnesses and received documents through letters from different authorities. PW9 referred to letter dated 15.2.2013 Ex.P-65, production-cum-seizure memo dated 1.5.2013 Ex.P-91, letter dated 29.5.2013 Ex.P-93, production- cum-seizure memo Ex.P-92 and P-94.
21. PW9 also referred to letter dated 6.3.2014 Ex.P-11, letter dated 28.3.2013 Ex.P-105, letter dated 12.7.2013 Ex.P-106, letter dated 1.3.2013 Ex.P-107, letter dated 20.6.2013 and 21.7.2013 written by Dr. Usha Sharma, General Manager, Jaipur Stock Exchange Ltd which are Ex.PW9/A and PW9/B respectively. PW9 further refers to letter dated 30.4.2013, 6.5.2013 and 22.6.2013 addressed to him by Madhya Pradesh Stock Exchange are Ex.PW9/C, PW9/D and PW9/E respectively. He also refers to letter dated 26.2.2013 from Manager, UTI, Assets Manager Ltd which is Ex. PW9/F. PW9 also states about letters/documents Ex. P-110, P-102, P-103, P-104, P-95 to P-101 P-34 to P-43 as well as Ex.PW9/G to PW9/K. PW9 also refers to other documents which are admitted by the accused u/s 294 Cr.P.C.
22. PW10 Mahender Kumar Gupta who states that he is a Director of D. N. Kansal Securities Pvt Ltd, which deals in share broking attached to Delhi Stock Exchange. He states that he CC No.40/2019 CBI vs. Parmod Kumar Jain Page 9 joined the investigation of CBI in this case. Since Income Tax Department had conducted a raid in the premises of his company, in October 2006, during investigation of this case he identified certain documents seized by IT department. PW10 proves the copy of Statements of Account in the name of Ms. Neelam Jain w/o Parmod Kumar Jain which is lying in the file Ex. P-12. That document is Ex.PW10/A (D-14/143-146). PW10 further says that though Delhi Stock Exchange closed operating share dealing in year 2000 but transactions pertaining to Ex.PW10/A was carried out as "off the floor", which means that transaction of share purchase, took place on the net.
23. PW11 is Shanti Nath Jha, who deposed that in year 2012 he was working as Manager in Karvy Computer Share Pvt Ltd. PW11 says that above said Karvy Computer Share Pvt Ltd is registered transfer agent of UTI Mutual Fund schemes. He states that by letter dated 29.5.2012 of Karvy Computer Share Pvt Ltd information was provided to the IO of this case as per the details given therein at serial no. 2, 3 and 4. Said letter is already Ex.PW6/D. PW11 says that as per the information provided Neelam Jain w/o Parmod Jain had purchased 200 units of UTI Equity Funds and paid Rs.2000/- on 1.8.1992. PW11 says that said fund was redeemed on 19.4.2005 and holder was paid Rs.3966/- (including 1966 being dividend/profit). PW11 further says that similarly as per the annexure, accused Parmod Kumar Jain had also invested Rs.10,000/- in UTI Master Value in 1992 and said scheme had not given any dividend to the holder till year 2012. Under the above said letter Ex. PW6/D information was also given that accused Parmod Kumar Jain had also invested Rs.24,000/- in UTI Master Share Units Scheme during CC No.40/2019 CBI vs. Parmod Kumar Jain Page 10 3.1.2006 to 2.1.2008. Said details of money invested by Parmod Kumar Jain was given by statement of account along with the above said letter. PW11 also provided the statement of account of accused Parmod Kumar Jain vide Folio No. 516236684596.
24. PW12 is Naveen Khatri who stated that he has been Director of company M/s Sudev Industries Ltd, having registered office at UPSIDC, Sikandrabad, District Bulandshahar and corporate office at Pitampura, Delhi. PW12 further stated that he joined as Director in said company in year 2011 and remained Director till year 2019. He says that he joined the investigation of CBI in this case in year 2013 and informed that above said company was registered in year 1992. Company was formed for carrying out business of manufacture and trading plastic molded goods. Witness states that he cannot give specific value of the share of above mentioned company during the period from 20.3.2001 to 24.5.2002 because during year 1998 to 2000 trading of shares of said company remained suspended on account of cessation of business of company due to sealing of registered office at UPSIDC.
25. On being asked specific question, PW12 stated that as per his memory the value of share of his company remained from Rs.3/4 to Rs.10/11. He states that the value of the share had never increased beyond Rs. 11. PW12 further says that business activities of the above said company stopped in year 1998 on account of sealing done by UP Finance Corporation for non- payment of dues. Registered office of the company was sealed. Since 2002 nil Income Tax Return of the company is being filed. PW12 also identifies letter dated 27.6.2013 already exhibited as Ex.PW9/I given by him to CBI.
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26. PW13 is Munish Kalia who stated that in April 2013 he was working as Senior Accountant in College Estate Pvt Ltd. He states that he joined the investigation of the present case when he visited the office of CBI and handed over certain documents. PW13 proves letter dated 1.4.2013 already exhibited as Ex.P-40 given by Sh. Ashish Sethi, Director (Finance) of College Estate Pvt Ltd vide which information was given regarding payment of Rs.7,48,520/- each to Ms. Neelam Jain and J.K. Jain after deduction of TDS, towards the payment of rent of property No. GF-1M, Ground Floor, Viva College Mall, Village Pragpur, Jalandhar, Punjab.
27. PW14 is Punit Mittal who deposed that in year 2013 he was working as General Manager in Beetal Finance Computer Services Pvt Ltd and joined the investigation of this case on receipt of letter for information regarding company by name Sudev Industries. PW14 states that his colleague Mr. Utpal Sen Gupta deputed him to provide information/documents regarding above said company Sudev Industries and accordingly he provided those documents to CBI. PW14 refers to letter dated 26.6.2013 already exhibited as Ex.PW9/K vide which Mr. Utpal Sen Gupta authorized PW14. PW14 also refers to letter dated 25.6.2013 along with enclosures Ex. PW9/K vide which information was provided to the CBI. PW14 states that those documents contain the details of share trading of Sudev Industries in Kolkata Stock Exchange during year 2003-04.
28. PW15 is Parshant Mishra who states that in February 2014 he was working as Internal Auditor in M/s Kumar Alok & Associates. On receipt of telephonic call from CBI, he joined the investigation in this case by visiting the office of CBI. PW15 CC No.40/2019 CBI vs. Parmod Kumar Jain Page 12 says that he was shown certain original specimen signatures cards and cheques. PW15 refers to specimen signature card of account No. 384 of M/s S.R. Investment as well as specimen signature card of account No. 383 of M/s Krishna Stock Broking Company Ltd (already Ex. P-97 colly.) maintained in Jain Cooperative Bank, Darya Ganj, Delhi. PW15 further refers to cheque No. 028526 dated 14.10.2002 of Rs. 96,816.50, cheque No. 028515 dated 7.10.2002 of Rs. 1,00,000/- and cheque No. 030315 dated 30.10.2002 of Rs.3,93,633/- all in favour of Ms. Neelam Jain (all already exhibited as Ex.P-97 collectively). PW15 says that he does not know any person by name Parmod Jain or Neelam Jain.
29. PW16 is Anand Swaroop who stated that in September 2011 while he was posted as Inspector CBI, ACB, he was investigating case RC No. 14A/2011 against Parmod Kumar Jain and other public servants as well as private contractors. He obtained search warrants from the court of Special Judge, CBI, Saket and on the basis of the same he conducted search at the residential premises of accused Parmod Kumar Jain at 23-B, Sangam Apartments, Sector-9, Rohini on 16.2.2011. PW16 deposes that during the search various documents as well as cash to the tune of Rs. 9,36,3000/- was recovered from the house of the accused. PW16 says that a search list was prepared which is already Ex.PW4/A, inventory of household articles prepared at the spot is Ex.PW4/B and list of jewelery items with valuation is Ex.PW4/C. PW16 says that regarding the money recovered from the house of accused, he asked for the explanation of keeping of so much amount in cash, however accused could not give any satisfactory reply for the same. PW16 says that later he filed a CC No.40/2019 CBI vs. Parmod Kumar Jain Page 13 complaint dated 29.11.2011 for registration of a case of disproportionate assets against accused Parmod Kumar Jain on the basis of which the FIR in this case was registered which is Ex.PW6/A.
30. PW17 is Sithanshu Sharma who deposed that while he was posted as inspector in CBI in 2011 investigation of this case was handed over to him from inspector Anil Bisht. Witness states that substantial investigation in this case was already over, therefore, on the basis of different material collected he initially filed closure report on 24.12.2014. PW17 stated that on the basis of the investigation it was found that accused was having disproportionate assets to the tune of Rs.23,55,272/- which was 22.23%. PW17 says that vide order dated 21.2.2015 directions were received for carrying out further investigation and closure report was not accepted. As per the orders of the court further investigation was carried out and later on 6.1.2016 he filed charge sheet in the matter mentioning that there was DA to the tune of Rs.22.23%. PW17 states that he collected the sanction order u/s 19 Cr.P.C. Ex.PW1/A from the competent authority of the accused.
31. PW18 is Satyavrat Sahu who deposed that in June 2013 he was General Manager in Kolkata Stoch Exchange. He received notice from the CBI, in pursuance thereto he stated to have furnished relevant documents. PW18 proved letter dated 21.6.2013 sent by him to IO Inspector Anil Bisht Ex. PW9/J along with the annexures. PW18 says that CBI had requisitioned him stock status of two companies namely Sudev Industries Ltd and Suma Finance and Investment Ltd. By the above said letter he informed CBI that Suma Finance & Investment Ltd was not CC No.40/2019 CBI vs. Parmod Kumar Jain Page 14 listed in Kolkata Stock Exchange, therefore, no particulars of that company could be provided. However another company i.e. Sudev Industries Ltd was listed in Kolkata Stock Exchange but since it was a non compliant company, therefore, there was no trading of its stock. PW18 says that he provided value stock of Sudev Industries Ltd for period of 1.4.2000 to 31.3.2000, the average price of that stock remained Rs.2.50 per share.
32. P.E. was closed. After closure of the P.E. the entire incriminating evidence, as come on the judicial record was put to the accused Parmod Kumar Jain in statement recorded u/s 313 Cr.P.C. Wherein accused while denying the evidence, has stated that "sanction order" for his prosecution was issued mechanically without due application of mind and entire material was not placed before the competent authority. Accused has not disputed certain documents admitted by him during the trial, however, other evidence has been denied.
In respect of recovery of Rs.9,36,3000/- in cash from his premises accused stated that it is a matter of record that such amount was recovered from his premises however the evidence of prosecution itself is conflicting as to where such amount was recovered. Accused stated that he had explained to the CBI team during investigation that said amount of Rs. 9 lacs belong to his brother-in-law namely Naveen Jain but such explanation was concealed by the CBI.
33. While not disputing certain evidence being matter of record. In respect of share trading of "Suma Finance and Invesment Limited", accused stated that even in the evidence of PW10 it came on record that PW10 was engaged in share broking business. Accused states that it was not possible for him CC No.40/2019 CBI vs. Parmod Kumar Jain Page 15 or his wife as a small investor to figure out whether the broking company was transacting for share trading by "off" or "on" the floor. Whatever the type of transaction PW10 admittedly made payments by cheques regarding the shares sold by his wife and him. While other evidence of PW10 has been denied.
34. Accused Parmod Kumar Jain further states that there is no authentic material available on record proving lawfully that value of the share of M/s Sudev Industries Ltd remained from Rs. 3 / 4 per share to Rs.10/11 per share. Accused stated that he is innocent public servant who has lived within the legal means. He states that he joined investigation of the CBI and provided all the relevant documents to clarify/explain whatever issues were raised during investigation. Accused states that unfortunately investigating officer did not consider number of his explanation, given along with relevant documents.
35. Accused states regarding shares purchased by him and his wife that neither he nor his wife had in depth knowledge of share market, they dealt with shares trading in bonafide manner in normal course of business and they received the payments by cheques only. Accused states that at present scenario, one has a benefit of knowing the current rates of shares online but at that time in early days of year 2000, transactions of share trading was being done at the back of small investors like him and his wife, therefore, they were not aware about the current value/Market Price of the shares as they were bonafide investors.
36. Regarding recovery of Rs.9 lacs cash from his residence, accused states that he has been throughout taking plea that such amount belong to his brother-in-law Naveen Jain who had kept that money in his house as his brother-in-law at that time was in CC No.40/2019 CBI vs. Parmod Kumar Jain Page 16 process of buying some property in Delhi. Accused states that his brother-in-law appeared before CBI officials along with necessary documents corroborating his version. However, his explanation regarding Rs.9 lacs cash was arbitrarily ignored by CBI.
37. Accused states regarding Greater Noida plot that investigating officer failed to consider relevant documents i.e. Agreement to Sell dated 7.1.2005 regarding sale of Lease Hold property no. C-186, Sector Sigma, Greater Noida sold by his wife Smt. Neelam Jain to one Chetan Bhatia for total sale consideration of Rs.17,60,000/-. Out of total sale consideration, Rs.12 lacs was deposited by the vendor (Neelam Jain) whereas the balance amount of Rs.5,60,000/- was to be deposited by the vendee/Chetan Bhatia to GNIDA (land owning agency) as per their specific demand raised by GNIDA as at that time plot was in the name of Smt. Neelam Jain. Accused states that his wife deposited Rs.1,30,024/- and Rs.1,40,000/- out of her resources towards the said property on 3.7.2003 and 17.10.2003. It is stated that sum of Rs.5,52,670/- which was remaining sale consideration was paid to GNIDA by the purchaser Chetan Bhatia (Rs.14,000 + Rs.1,44,670/- + Rs.3,94,000/-) by cheques drawn on ABN Amro on 7.1.2005 to clear off the accrued demands in the name of Smt. Neelam Jain as by then plot was in her name. It is stated that this is clear from document D-43. Accused states that CBI though mentioned income of Rs.17,60,000/- in the name of Smt. Neelam Jain whereas from the sale of the said property Rs.5,52,670/- was paid by the purchaser to GNIDA which cannot be considered to be income of Smt. Neelam Jain.
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38. It is further stated regarding depreciation of cars shown in the statement B that CBI had mentioned the value of the car purchased without deducting the amount of depreciation. Regarding the gift given by Lal Chand Jain (uncle of accused) to Smt. Neelam Jain, it is stated that CBI ought to have taken into consideration the affidavit given by Lal Chand Jain regarding that gift.
39. It is stated that for the above said reason CBI had ignored certain legal material and documents given to it during the investigation and have falsely implicated him in the present case. He states that there is sufficient material on the record to manifest that from filing of the closure report to filing of charge sheet against the accused without collecting even a single piece of additional evidence. Accused states that he is innocent and has been victim of circumstances to face arduous trial.
40. In his defence, accused has examined two witnesses. DW1 is Kamal Singh, Assistant in Greater Noida Authority who brought the original record i.e. letter dated 8.10.2013 issued from Greater Noida Authority addressed to Anil Bisht, Inspector CBI by which requisite information regarding deposit of payments for plot No. C-186, Sector Sigma-II allotted in the name of Smt. Neelam Jain were provided. Said letter is Ex. DW1/A. DW1 says that as per the information provided under the said letter Smt. Neelam Jain deposited sum of Rs.1,30,024/- on 3.7.2003 by DD No. 515052 of Bank of Baroda, Pitampura and further deposited sum of Rs.1,40,000/- on 17.3.2003 by DD No. 515769 of Bank of Baroda.
41. DW1 further states that on 7.1.2005 Rs.14000/- was deposited in cash, Rs.1,44,670/- was deposited by way of DD CC No.40/2019 CBI vs. Parmod Kumar Jain Page 18 No.159510 and sum of Rs.3,94,000/- was deposited by DD No. 159985, both drawn on ABN Amro. DW1 says that as per the details on 7.1.2005 ownership of aforesaid plot stood transferred from Smt. Neelam Jain to Chetan Bhatia.
42. DW2 is Naveen Kumar Jain who deposed that he runs a firm in Ghaziabad by name Navneet Enterprises for running business of mattress, foam sheets etc and his firm has been operating since 1994. DW2 states that accused Parmod Kumar Jain is his brother-in-law. Witness states that recovery of sum of Rs.9 lacs from the premises of accused Parmod Kumar Jain in fact belongs to him as he had handed over sum of Rs.9 lacs in cash to his brother-in-law Parmod Kumar Jain on 13.9.2011.
43. DW2 states that some sale executives of Raghav Industries with whom he had been doing business since long, suggested him to purchase commercial property in Delhi for running his business in Delhi as well. Therefore, he talked to one or two property dealers for purchasing property in Delhi. DW2 states that he was asked by property dealers to keep money ready for giving earnest amounts for purchasing any commercial property in Delhi, therefore, he brought money in Delhi on 13.9.2011. DW2 states that he looked one or two properties but when deal could not finalize, he stayed at the residence of his brother-in-law Parmod Kumar Jain at Sangam Apartment, Rohini for night. DW2 states that since during those days his children were studying in hostel in Pilani. While he was staying at his brother- in-law's place he received a call from his daughter that she was not well. Therefore, next day morning DW2 stated to have gone to Pilani and kept his money at the residence of his brother-in- law and requested that he would take back that money after CC No.40/2019 CBI vs. Parmod Kumar Jain Page 19 coming back from Pilani. DW2 states that he stayed at Pilani for two days and while he was coming back to Delhi from Pilani, he came to know that CBI has conducted a raid at the residence of his brother-in-law Parmod Kumar Jain wherein cash of Rs.9 lacs has been recovered besides other articles. DW2 states that his father suggested him not to go to Delhi as CBI raid was going on at that time, therefore, he came back to his house at Ghaziabad.
44. DW2 states that in running of his business since most of transactions are in cash. Annual turnover of his firm though is Rs.5 crores out of which there is cash transaction of Rs.2.5 crores. DW2 states that he had visited the CBI office, when he was called by Mr. R.L. Yadav, Inspector. DW2 says that he brought cash books of his firm, ledger of relevant period as well as income tax returns of his firm for showing to CBI officials.
No other witness was examined by the accused znd D.E. stands closed.
45. I have heard ld. PP for CBI and Sh. Yogesh Verma, counsel for accused. Ld. PP for the CBI submitted that accused has substantially admitted all the documents relied upon by the CBI. Beside that CBI has examined 18 witnesses which proved the charge against the accused. He submits that recovery of cash amount of Rs.9,36,300/- from the house of the accused has been duly proved from the evidence of PW4, PW5 as well as PW16 Anand Swaroop. Ld. PP for CBI further submits that evidence on record establish that accused was possessing assets disproportionate to his known source of income.
46. Ld. Counsel for the accused on the other hand submits that sanction u/s 19 of P.C. Act Ex.PW1/A has been passed without due application of mind as is reflected from cross-examination of CC No.40/2019 CBI vs. Parmod Kumar Jain Page 20 PW1 when witness admitted that draft performa for sanction was forwarded to him along with the material collected during the investigation. It is argued that recovery of sum of Rs.9 lacs from the residence of the accused has been proved by DW-2 to be belonging to brother-in-law of accused from the documents D- 131 relied upon by CBI itself Ex. DW2/A. Reliance has also been placed on judgments K.C. Singh Vs CBI Crl. Appeal No. 976/2010 Delhi High Court decided on 10.8.2011, Kedari Lal Vs State of M.P. & Ors., 2015 AIOL 2058, and Ashok Tshering Bhutia Vs State of Sikkim, 2011 (2) RCR (Criminal)
99. I have also gone through the written arguments filed on behalf of CBI as well as accused.
48. Having heard rival submissions made at Bar and having considered the entire material on judicial record, since accused has been charged for offences u/s 13 (2) r/w 13 (i) (e) of P.C. Act It is appropriate to understand the scope of offence u/s 13 (i) (e) of P.C. Act. Section 13(1)(e) of P C Act 1988 reads as:
49. "13. Criminal misconduct by a public servant
-(1) A public servant is said to commit the offence of criminal misconduct, -
(a) to (d) ...............
(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 CC No.40/2019 CBI vs. Parmod Kumar Jain Page 21 of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant."
50. As ordained by the above statutory text, a public servant charged of criminal misconduct thereunder has to be proved by the prosecution to be in possession of pecuniary resources or property disproportionate to his known sources of income, at any time during the period of his office. Such possession of pecuniary resources or property disproportionate to his known sources of income may be of his or anyone on his behalf as the case may be. Further, he would be held to be guilty of such offence of criminal misconduct, if he cannot satisfactorily account such disproportionate pecuniary resources or property. The explanation to Section 13(i)(e) elucidates the words "known sources of income" to mean income received from any lawful source and that such receipt has been intimated in accordance with the provisions of law, rules, orders for the time being applicable to a public servant.
51. The expression 'known sources of income' in section 13 (I)
(e) of P.C. Act has to elements, first the income must be received from lawful source and secondly the receipt of such income must have been intimated in accordance of provisions of law, rules or orders for the time being applicable to the public servant. No doubt, the prosecution has to establish that pecuniary assets acquired by the public servant are disproportionately larger than his known source of income and then it is for the public servant to account for such excess. The prosecution cannot, in the very CC No.40/2019 CBI vs. Parmod Kumar Jain Page 22 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 Evidence Act. Thus, the offence becomes complete only on the failure of public servant to account or explain such excess.
52. From the design and purport of clause (e) of sub-clause (1) to Section 13, it is apparent that the primary burden to bring home the charge of criminal misconduct thereunder would be indubitably on the prosecution to establish beyond reasonable doubt that the public servant either himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income and it is only on the discharge of such burden by the prosecution, if he fails to satisfactorily account for the same, he would be in law held guilty of such offence. In other words, in case the prosecution fails to prove that the public servant either by himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income, he would not be required in law to offer any explanation to satisfactorily account therefor. A public servant facing such charge, cannot be comprehended to furnish any explanation in absence of the proof of the allegation of being in possession by himself or through someone else, pecuniary resources or property disproportionate to his known sources of income. (State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200; Vasant Rao Guhe v. State of Madhya Pradesh AIR 2017 SC 3713).
CC No.40/2019 CBI vs. Parmod Kumar Jain Page 23
53. In the light of above discussion of legal proposition for charge u/s 13 (I) (e) of P.C. Act, let us now discuss different items under Statement-A, Statement-B and Statement-C. Assets of accused in Statement-B.
54. In Statement B as given in charge sheet, there are 20 heads of assets of accused, accumulated during the check period. I would discuss herein below each item of the assets of accused along with its valuation as alleged in the charge sheet.
(i) Scooter having Registration No. DL8SL8182 purchased in the year 1998. -Value Rs. 27,565/-.
There is no dispute on the above said item and its value from the accused.
(ii) One car 800 Maruti registration No. DL4CK 1963, purchased in the name of Mrs. Neelam Jain in year 1999. Value Rs. 1,92,517/-.
(iii) Car Tata Indica Registration No. DL3CW 6563 in the name of Mrs. Neelam Jain purchased in January 2005. Value Rs. 3,60,668/-.
As per prosecution, these cars were purchased in year 1999 and 2005 at the cost of Rs.1,92,517/- and Rs.3,60,668/- respectively, in the name of wife of accused namely Neelam Jain. It is submitted on behalf of the accused that value of these cars should have been mentioned after deducting the depreciation value of the vehicles. It is argued that as per the Income Tax Act, 1961 assessee is allowed depreciation at specified rate in respect of cars. Therefore, written down value of the cars should have been mentioned instead of mentioning the original value of the cars when these were purchased.
No evidence has been led in this regard. Purchase value of CC No.40/2019 CBI vs. Parmod Kumar Jain Page 24 the cars is not disputed only issue is to be examined is as to whether the valuation of the assets in the Statement B should be mentioned after deduction of depreciation or not. I am of the view that in the absence of any evidence, taking the provisions of IT Act 1961 into consideration, though the movable assets like cars do depreciate and valuation is generally depreciated by 10% of the value per annum. However no evidence has been led even on behalf of the accused for proving as to till what period those vehicles were kept and when the same were sold. This aspect assume importance because at the time of charge it was argued that Maruti car Registration No. DL4CK 1963 was sold in year 2005. But no evidence has been led in this regard by the accused. In the absence of any evidence from accused on this issue, no exact written down value of these vehicles can be ascertained. Therefore, I find that valuation of the cars would be mentioned on the value it was purchased i.e. Rs.1,92,517/- and Rs.3,60,668/- respectively as mentioned in the charge sheet. However, the depreciation of these vehicles would be also added in Statement-D i.e. expenditures for two years. In other words depreciation value of the vehicles would automatically be deducted as an "expenditure", for the purpose of calculating the actual valuation of the cars. Accordingly, it is held that depreciation @ 10% per annum on the original value, be deducted for two years.
(iv) Balance in SB A/c (old No. 5495) No. 1904010000139 in the name of Sh. Parmod Kumar Jain in Bank of Baroda, Maurya Enclave, Pitampura, Delhi as on 16.09.2011 total amount Rs.86,604.43.
(v) Balance in SB A/c No. (old 6365) 19040100002552 in the name of Smt. Neelam Jain at Bank of Baroda, Maurya Enclave, Pitampura, Delhi as on 16.09.2011 total amount CC No.40/2019 CBI vs. Parmod Kumar Jain Page 25 Rs. 41,639.66.
(vi) Balance in SB A/c No. 830282 at Corporation Bank, Nangloi, Jat, Nazafgarh Road, Delhi in the name of Parmod Kumar Jain as on 16.9.2011 total amount Rs.1,60,540/-.
(vii) Balance in PPF A/c No. 30051504244 with State Bank of India total amount Rs.9,41,436.44.
(viii) Balance in SB A/c No.3007897518-9 in the name of Ms. Priyanshi Jain in State Bank of India, Sector-9, Rohini branch. Period 16.09.2011, total amount Rs. 1,79,96,9.71.
Above said items nos. 4 to 8 as mentioned in the charge sheet and its valuation are not disputed. Therefore same are taken to be proved.
(ix) Cash seized from the house of accused Parmod Kumar Jain on 16.9.2011 to the tune of Rs.9,36,300/-.
As per prosecution case, on 16.9.2011 search was conducted at the premises of the accused where from beside other documents, jewelery etc, amount of Rs.9,36,300/- in cash was seized. Recovery of such cash amount is not disputed. It is matter of record that initially when CBI filed the closure report, it relied upon documents/letter dated 25.2.2013 given by brother- in-law of the accused namely Naveen Kumar Jain for stating that such money in fact belongs to Naveen Jain and not to the accused. These documents are D-131 filed with closure report. However, later when CBI filed charge-sheet, these documents were not relied upon for reasons best known to it.
Prosecution has examined PW4 and PW5 being independent witnesses to the search proceedings conducted at the residence of accused, when the above said cash amount was recovered. Beside their evidence, PW16 Anand Swaroop, Inspector, CBI, who conducted the search proceedings in RC CC No.40/2019 CBI vs. Parmod Kumar Jain Page 26 No.14A/2011. He inter alia stated regarding recovery of cash amount of Rs.9,36,300/- from the house of the accused.
Although ld. Counsel for accused argued that there were contradictions in evidence of these witnesses as to where from cash was recovered. However I need not to go in detailed elaboration of PW4, PW5 or PW16 for the reason that recovery of such cash amount is not even disputed by the accused. The only plea made on behalf of the accused is that in fact such money belong to his brother-in-law Naveen Kumar Jain. The above said witnesses PW4, PW5 and PW16 have been suggested in their cross-examination by defence that money so recovered at the residence of the accused belongs to his brother-in-law Naveen Kumar Jain and not to him.
In the statement u/s 313 Cr.P.C., accused has taken specific plea that such amount belongs to his brother-in-law who had come to Delhi for the purpose of buying some property in Delhi and kept the same at his residence. Accused further took the plea that supporting document showing that money belongs to brother-in-law of the accused were also given to CBI during investigation, but same were withheld at the time of filing the charge-sheet.
Ld. Counsel for the accused had specially referred to cross- examination of PW9 Anil Bisht who had partly investigated the matter. In cross-examination PW9 admitted documents D-131, filed with the closure report were collected by him from Naveen Jain during the investigation. Those documents were exhibited as Ex. PW9/D-1. Ld. Counsel for the accused has also referred the evidence of PW17 Sitanshu Sharma who had filed the closure report as well as the charge-sheet in this case. In cross-
CC No.40/2019 CBI vs. Parmod Kumar Jain Page 27 examination, PW17 admitted that at the time of filing the closure report he relied upon the documents given by brother-in-law of the accused regarding the money recovered from the house of accused belonged to him. Those documents were D-131. PW17 further admitted that at the time of filing the charge-sheet, those documents were not made part of the judicial record. In this regard, PW17 further stated that explanation given by the accused to the effect that such money belongs to his brother-in- law, was found to be not tenable. Therefore, D-131 was not made part of charge-sheet.
In defence, accused has examined his brother-in-law Naveen Jain (DW-2) who deposed that since he was trying to purchase a commercial property in Delhi for his business, he was talking to one or two property dealers who had suggested him to keep the earnest amount ready for purchasing commercial property in Delhi. Therefore, he had brought money to Delhi for purchasing some property, on 13.9.2011. However, on that day no deal could be finalized and he stayed over to his brother-in- law's place at Rohini Sangam Apartment for night. DW2 states that his children were studying in Pilani during those days, while he was staying at the house of his brother-in-law, he received a call that his daughter is not well. Therefore, he stated to have gone to Pilani and kept the money at the residence of his brother- in-law (accused). DW2 says that after two days when he was coming back to Delhi he came to know that CBI raid had been at the house of accused wherein Rs.9 lacs were recovered.
DW2 states that on the advice of his father he did not go to Delhi and came back to his residence at Ghaziabad. He states that later he visited the CBI office when he was called by CC No.40/2019 CBI vs. Parmod Kumar Jain Page 28 Inspector R.L. Yadav. DW2 states that he had shown cash books, accounts of his firm as well as Income Tax Returns to show that said money belonged to him and not to his brother-in-law. DW2 states that documents D-131 (Ex.PW9/D-1 Colly.) are the copy of the documents original of which he had given to Inspector R.L. Yadav and later the copy of the same was given to Inspector Anil Bisht. DW2 brought the original of those documents at the time of his evidence which are Ex.DW2/A. Though DW2 was cross-examined at length by Ld. PP for CBI. Having considered the entire evidence of DW2, important aspect to be noted here that despite lengthy cross-examination, nothing has been asked from this witness about the documents D- 131 (Ex.PW9/D-1 or Ex.DW2/A). Admittedly these documents include letter dated 25.2.2003 given by DW2 to CBI, along with copy of his cash book, ledger and Income Tax Returns of his firm. First of all these documents were intentionally withheld by CBI at the time of filing the charge-sheet, despite filing the same at the time of filing of closure report. During the trial, upon an application moved on behalf of the accused u/s 91 Cr.P.C., these documents were allowed to be taken on record. These documents have been proved in the evidence of DW2. I have gone through these documents which clearly show that the business of DW2 was such that there was more cash transactions. As such, it is probable that the cash amount as recovered from the house of accused may belong to DW2. There can hardly be any specific evidence about the entitlement of cash amount, whoever is keeping the cash, same belongs to him. But if evidence has been given by some documents to show that in fact such cash amount belongs to some one else. Same can be considered. As noted CC No.40/2019 CBI vs. Parmod Kumar Jain Page 29 above, in the lengthy cross-examination of DW2 not even a single question has been asked with regard to D-131 Ex.DW2/A. Witness has not been suggested in cross-examination that the documents as produced by him do not establish his entitlement to the cash amount of Rs.9 lacs or that those documents do not establish that there was no cash transaction in his business.
As such, the evidence of DW2 and documents Ex.DW2/A establish by preponderance of probability that money which was recovered from the house of accused, may in fact belong to the brother-in-law of accused and not to the accused. In this context it is important to note that onus of proving the charge against the accused, is on prosecution is to prove beyond doubt, whereas the onus placed on the accused to prove his innocence, is only by preponderance of probability. (State of Maharashtra Vs. Vasudev Ram Chandra Kaidalwar AIR 1981 SC 1186) If there is evidence on the record showing that it is possible that money recovered from the house of accused may belong to his brother-in-law and documents Ex.DW2/A indicate that fact. In the absence of anything coming on record impeaching the genuineness of those documents, it can safely be concluded that accused has proved at least by preponderance of probability that such money in fact belong to his brother-in-law DW2. This fact assume importance on account of the fact that these documents D-131 were given by DW2 to CBI during the investigation itself to two different investigating officers. These documents were consciously withheld for no justifiable explanation. If these documents were made available to the CBI during the investigation itself, these documents ought to have been examined or checked to see same were genuine or not. There has CC No.40/2019 CBI vs. Parmod Kumar Jain Page 30 never been any evidence from any of the investigating officer who received these documents to state that they verified the veracity of those documents D-131 and found them to be not genuine or created only for the defence of the accused. In the absence of the same, benefit of doubt has to be given on this aspect. As such, I conclude that recovery of Rs.9,36,300/- would not be included in the assets of the accused/in Statement-B.
(x) Household items found during the house search on 16.09.2011 Rs.1,69,600/-.
(xi) Jewelery found during search on 16.09.2011 amount Rs.25,000/-.
(xii) Certificate No.4585232 dated 16.09.2009 with maturity date 16.01.2012 in the name of Sh. Parmod Kumar Jain for amount Rs.20,000/-.
(xiii) Flat No. B-23, First Floor, Sangam Apartments, Sector-9, Rohini, Delhi in the name of Sh. Parmod Kumar Jain. amount Rs.6,50,000/-.
(xiv) Flat No. B702, Happy Home Apartment, Sector-7, Delhi in the name of Smt. Neelam Jain purchased on 12.08.1996 for amount Rs.11,90,100/-.
(xv) Mrs. Neelam Jain's share in commercial space (shop) no.
GF-1M, Ground Floor, Viva Collage, Village-Paragpur, Jalandhar, Punjab, in the joint name of Jinendra Kumar jain s/o Pannalal Jain and Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain. (Total cost of the plot is Rs.29,29,500/-) November 2007 for amount Rs.7,79,500/-.
(xvi) 50% share of Smt. Neelam Jain (wife of accused) in plot no.
1199, Pocket 1-A, Sector-30, Rohini Delhi (including regt. Charges) in the joint name of Sh. Jinender Kr. Jain s/o Pannalal Jain total cost of Rs.6 lacs + 36,000/- stamp duty and Rs.100/- registration fee) period 13.03.2008 amount Rs.3,18,050/-.
(xvii) 50% share of Smt. Neelam Jain in plot no. 529, Block-C, Pocket-I, Sector-27, Rohini, Delhi purchased jointly with Jinender Kumar Jain from Giriraj Kishore Aggarwal at the CC No.40/2019 CBI vs. Parmod Kumar Jain Page 31 cost of Rs.11,80,000/- plus Rs.59,000/- stamp duty. Period 02.05.2011 amount Rs.6,19,500/-.
Items of assets from serial no. (x) to (xvii) as noted above along with its valuation, as mentioned in the charge-sheet have not been disputed by the accused. As such they are being taken admitted and proved. It is stated that these items have been duly reflected in the respective ITRs of accused and his wife Neelam Jain.
(xviii) Plot no.528, Block-C, Pocket-I, Sector-27, Rohini, Delhi purchased in the name of Mrs. Neelam Jain on 30.04.2011. Period 02.05.2011 amount Rs.12,30,150/-.
Although, the existence of property at item no. (xviii) in the charge sheet is not disputed. However, in the written arguments it is stated that calculation of the value has not been properly stated. It is stated that said property was purchased for Rs.11,80,000/- and stamp duty of Rs.47,200/- paid and Rs.100 for registration charges. As such total valuation comes out to be Rs.12,27,300/- instead of Rs.12,30,150/- as mentioned in the charge sheet. It is submitted that the exact valuation should be Rs.12,27,300/-, and thereby the total valuation of the asset would lower down by Rs.2,950/-. Having considered the figures as given in the charge sheet, it appears that there was incorrect calculation of the valuation of said asset. As such, the value of this property is taken to be Rs. 12,27,300/-
(xix) Flat No. G-24, UPIDC, Kosi-Kotvan, Mathura in the name of Smt. Neelam Jain allotted on 30.08.2007. Amount Rs.2,37,000/-.
(xx) PPF Account No. 30992245563 in the name of Mrs. Neelam Jain at SBI, Rohini, Delhi. Period 16.09.2011 amount Rs.1,85,283/-.
CC No.40/2019 CBI vs. Parmod Kumar Jain Page 32 Above mentioned items no. (xix and xx) as mentioned in the charge-sheet are again not disputed by defence. As such these assets and its valuation is being taken to be proved.
From the above discussion it is found that under the statement B the total valuation of the assets of the accused and his family members comes out to be Rs.74,12,273.24.
Income of accused during check period Statement-C. Let us now discuss different heads of income of accused and his family members during the check period as noted above.
(i) Salary Income of Parmod Kumar Jain from November 1987 to 31.8.2011 (gross Rs.53,37,074.62) amount Rs. 46,41,019/-.
(ii) Interest earned in SB A/c No.830282 in the name of Sh.
Parmod Kumar Jain, with Corporation Bank for Period 01.11.2003 to 16.09.2011 amount Rs.37,917/-.
(iii) Interest earned in SB A/c No.5494 dated 03.07.1991 (new no. 1904010000139) in the name of Sh. Parmod Kumar Jain with bank of Baroda, Maurya Enclave, Pitampura, Delhi. Period 05.04.2000 to 19.09.2011 amount Rs.13,081/-.
(iv) Interest earned in SB A/c No.6365 dated 25.02.1992 (new no. 19040100002552) in the name of Smt. Neelam Jain, with Bank of Baroda, Maurya Enclave, Pitampura, Delhi. Amount Rs. 212,686/-.
(v) Maturity value of UTI Units having folio No. MG92N 3986634 in the name of Ms. Neelam Nain for Rs.2,000/-. Period 1992 to April 2005 amount Rs.3,966/-.
(vi) Interest earned in PPF A/c No. 30051504244 in the name of Sh. Parmod Kumar Jain with State Bank of India, Sector-9, Rohini, Delhi. Period 19.06.1997 to 16.09.2011 amount Rs.3,31,236/-.
(vii) Interest earned in SB A/c No.30078975189 in the name of Ms. Priyanshi Jain with State bank of India, DC Chowk, CC No.40/2019 CBI vs. Parmod Kumar Jain Page 33 Deepak Plaza Building, Sector-9, Rohini, Delhi. Period 20.09.2006 to 16.09.2011 amount Rs. 6,578/-.
(viii) Interest earned on Maturity of LIC Policy No. 111449928 in the name of Parmod Kumar Jain. This policy matured on 28.08.2011 with a maturity value of Rs.54,925/- whereas in all Rs.1,89,37/- (including Rs.2650/- late payment charges) was paid as premium. Period 1991 to September 2011 amount Rs.54,925/-.
(ix) Survival benefit received in LIC Policy No.280123521 in the name of Parmod Kumar Jain (Money back) Rs.30,000/- each have been received as survival benefit in 1993, 1998, 2003 & 2008. Period 1988 to September 2011 amount Rs.1,20,000/-.
(x) Dividend earned in LIC Nomura Mutual Fund Folio No. 5104489394 in the name of Ms. Priya Jain under guardianship of Parmod Kumar Jain (initial investment of Rs.2,000/- on 17.09.2002 which matured on 15.04.2005 and reinvested and closed on 15.4.2005 of Rs.5004.46). Therefore, Rs.3004.46 has been taken as income.). Period September 2002 to April 2005 amount Rs.3,004.46.
(xi) Interest earned from Reliance Mutual Fund Folio No. 40838896874 (SIP of Rs.1000/- per month w.e.f. January 2007 to December 2007) in the name of Neelam Jain. (total paid amount Rs.12000/- and redemption was Rs.15,829.75. Period January 2007 to December 2007 amount Rs.3,829.75.
(xii) Profit earned through sale of shares through M/s Paras Ram Holdings Pvt Ltd by Sh. Parmod Kumar Jain having trade code No.CSGL2P. Period 2007 to September 2011 amount Rs. 11,426.35.
(xiii) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 1993-94 amount Rs.30,490/-.
(xiv) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 1994-95 amount Rs.33,575/-.
(xv) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 1995-96 amount Nil.
(xvi) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 1996-97 amount Rs.44,987/-.
(xvii) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 1997-98 amount Rs.51,404/-.
CC No.40/2019 CBI vs. Parmod Kumar Jain Page 34 (xviii) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 1998-99 amount Rs.54,477/-.
(xix) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 1999-00 amount Rs.65,921/-.
(xx) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 2000-01 amount Rs.66,011/-.
(xxi) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 2001-02 amount Rs.66,785/-.
(xxii) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 2002-03 amount Rs.90,241/-.
Above mentioned item numbers (1 to xxii) of incomes of accused and his family members in Statement-C as given in the charge-sheet has not been disputed. As such, those items of income are being taken to have been admitted and proved on the record.
(xxiii) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 2003-04 amount Rs.50,273/-.
As per the prosecution case during the assessment year 2003-04, ITR of Smt. Neelam Jain reflected total income of Rs,6,24,097/- out of which there was income of Rs.49,810/- under the heads of tuition fee/profession and Rs.463 as bank interest. That income is not disputed.
However, in the said ITR Smt. Neelam Jain had also shown long term capital gain by sale of 8100 shares M/s Sudev Industries @ Rs. 72.90 per share sold on 24.5.2002 whereas same was purchased on 20.3.2001 @ Rs.200 per share. So prosecution has disputed such capital gain of Rs.5,73,824/- as shown in the ITR. Same has not been added in the income of accused and his family members on the ground that Parmod Kumar Jain or his CC No.40/2019 CBI vs. Parmod Kumar Jain Page 35 wife could not provide any documents regarding such capital gain. It is also allegation that in Kolkata Stock Exchange rate of share of above mentioned company was only Rs.2.50 on 24.5.2002, whereas for the same date accused has shown ITR of his wife having sold those shares @ Rs.72.90 per share. It is alleged that accused his wife failed to explain such discrepancy. Statements of Director of this company namely Naveen Khatri etc was also recorded.
In order to substantiate its case prosecution has examined PW12 Naveen Khatri, PW14 Punit Mittal and PW18 Satyavrat Sahoo. As per PW12 Naveen Khatri who has been director of M/s Sudev Industries, he stated that he cannot give specific value of shares of that company for period from 20.3.2001 to 24.5.2002 because during year 1998 to year 2000, trading of shares of said company remained suspended. This witness further deposed that as per his memory value of share of said company remained between Rs.3 / 4 to Rs.10/11 and has never increased beyond Rs.11. PW12 further stated that business activity of that company was stopped in 1998 on account of sealing of registered office of the company by UP Finance Corporation. PW14 Punit Mittal who was General Manager in Beetal Financial and Computers Services Pvt Ltd also proved a letter dated 25.6.2011 Ex.PW9/K along with the history information of shares of Sudev Industries showing that value of the share of above said company remained between Rs.2.05 to Rs.8.05 per share. Similarly, PW18 Satyavrat Sahoo who was earlier working as General Manager in Kolkata Stock Exchange has deposed that average price of stock of M/s Sudev Industries Ltd remained Rs.2.50 per share for period of 1.4.2000 to 31.3.2000.
CC No.40/2019 CBI vs. Parmod Kumar Jain Page 36 As against this above discussed evidence, defence of the accused as stated in statement u/s 313 Cr.P.C. that accused and his wife Neelam Jain had dealt with these shares through registered stock broker. Neither accused nor his wife had any indepth knowledge of working of share capital and during those days of 2000 there was not instant information available about the current share value of any company. Accused states that he and his wife has been bonafide purchaser and seller of shares in normal course of business.
Counsel for the accused submits that evidence of PW12, PW14 and PW18 does not inspire any confidence and does not conclusively establish exact value of the shares at the relevant time. Counsel for the accused further submits that PW12 was declared hostile and failed to establish that registered office of the company was ever sealed. Counsel further submits that PW14 admitted in his cross-examination that there is no transactions of shares, appearing in the name of Ms. Neelam Jain during year 2001 and 2002.
Having considered the entire evidence as come on the record, I find that it has been proved by PW12 Naveen Khatri who was the director of M/s Sudev Industries that business activity of that company stopped in year 1998 on account of sealing of its registered office by UP Finance Corporation due to non payment of dues. PW12, PW14 and PW18 have consistantly deposed that value of shares of Sudev Industries have never increased from Rs.2.5 per share. PW12 has even stated that trading of shares of said company remained suspended on account of cessation of business activities of the company. Beside this even accused has also not led any evidence to show CC No.40/2019 CBI vs. Parmod Kumar Jain Page 37 that his wife had sold shares of that company @ Rs.72.90. There is no documentary evidence to establish sale of shares of that company @ Rs.72.90. In this regard, onus was on the accused to prove that even if there was 'off floor' trading of those shares, documentary evidence ought to have been placed on record to prove selling of shares at Rs.72.90, whereas there is evidence on the record showing that during the relevant time even in Kolkata Stock Exchange the average rate of shares of that company was only Rs.2.5 per share, therefore, I find that prosecution has rightly excluded sum of Rs.5,73,824/- from the income of the accused or his family members as long terms capital gain for selling of shares of that company. As such, I conclude that income of Mrs. Neelam Jain for assessment year 2003-04 has been rightly calculated to be of Rs.50,273/-. (xxiv) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 2004-05 amount Rs.64,209/-.
In the Income Tax Return of Mrs. Neelam Jain for assessment year 2004-05, total income was shown to be Rs.5,56,851.40. Out of which income of Rs.59045/- as tuition fee/profession as well as Rs. 5,164/- as bank interest is not disputed by the prosecution.
However, since in the same ITR, Mrs. Neelam Jain had also shown income of Rs.4,92,642/- as long term gain regarding sale of 6400 equity shares of M/s Suma Finance and Investment on account of selling those shares @ Rs.80.91 on 5.4.2003 (whereas purchasing those shares @ Rs.3.92 on 10.5.2001). Such amount of Rs.4,92,642/- has been excluded from the income by the prosecution on the ground that though accused had shown that he had sold those shares and received the payment by CC No.40/2019 CBI vs. Parmod Kumar Jain Page 38 cheque through Mr. Mahender Kumar, Proprietor of M/s D.K. Kansal Securities Pvt Ltd. Whereas said Mahender Kumar revealed that he do not know Parmod Kumar Jain or his wife Neelam Jain. Said Mahender Kumar also stated that he had never made any transaction regarding sale/purchase of shares of said company.
In respect of sale of shares of M/s Suma Finance and Investment, the defence of the accused is that she is the bonafide purchaser and seller of shares of said company and having received the payments by cheques.
In order to substantiate its allegation prosecution has examined PW3 Hari Om Aggarwal and PW10 Mahender Kumar Gupta. Evidence of PW3 is simple that he being director in the company M/s D.N. Kansal which was dealing in business of share broking i.e. sale and purchase of shares as broker in Delhi Stock Exchange. Since the trading of shares in Delhi Stock Exchange was closed in year 2001, therefore, he sold said company to Mahender Kumar (PW-10) and his associates, in August/September 2002.
PW10 is Mahender Kumar who stated that he became director of M/s D.N. Kansal Securities Pvt Ltd which has been dealing in share broking at Delhi Stock Exchange. PW10 stated that since IT Department had conducted the raid at the premises of said company in October 2006, he identified certain documents seized by IT Department including statement of account of Mrs. Neelam Jain which file Ex.P-12 and Ex.PW10/A (D-14/143-146). PW10 has also deposed that though Delhi Stock Exchange was closed for share transactions but that transaction was carried out 'off the floor'.
CC No.40/2019 CBI vs. Parmod Kumar Jain Page 39 PW10 declared hostile and in cross-examination he admitted of having stated in his statement u/s 161 Cr.P.C. Ex.PW10/P-1 that purchase and sale of shares of M/s Suma Finance and Investment @ Rs.80.90 of 6400 shares of total amount of Rs. 5,17,862.40 was paid by cheque by that company but in fact it was only adjustment entry in the name of Mrs. Neelam Jain by taking commission @ 0.25%. In the cross- examination witness admitted three different cheques collectively Ex.PW10/B regarding payment of money in favour of Smt. Neelam Jain for sale of shares of above mentioned company. PW10 also proved ITR of different assessment years of his company which are Ex.PW10/C. Having considered the evidence of PW10 first of all it be noted that PW10 has admitted that there used to be trading of shares by 'off the floor transactions'. PW10 further admitted regarding transaction of sale of M/s Suma Finance and Investment shares by Mrs. Neelam Jain @ Rs.80.92 of 6400 shares of that company. But this witness admitted in cross- examination by PP for CBI that such transaction was in fact an adjustment entry for which commission @ 0.25% was charged. This witness has also proved statement of account in the name of Mrs. Neelam Jain which is Ex.PW10/A along with invoice regarding selling of shares of above said company wherein he admitted his signatures. Similarly, this witness also admitted cheques no.593703, 593713, 593751 of Rs.1,29,465.60, 1,94,198.40 and 1,94,198.40 drawn on Canara Bank, in the name of Mrs. Neelam Jain. Now once the transaction of sale of shares of above said company with particular rate on which such shares were sold coupled with the statement of account and cheques CC No.40/2019 CBI vs. Parmod Kumar Jain Page 40 issued by PW10 in the name of Mrs. Neelam Jain have proved on record, in that situation it was for prosecution to establish that such transaction was rather a "sham transaction" or an adjustment entry for taking commission.
Important here to note is that such income by capital gain has been reflected in the ITR of Mrs. Neelam Jain for assessment year 2004-05 and accepted by the IT Department. In cross- examination by defence, PW10 had admitted that he had been issuing around 1000 to 1500 bills from his company regarding different transactions of share trading. He also admitted that none of the document indicate charging of any commission @ 0.25%. PW10 rather admitted in cross-examination that bills Ex.PW10/A were issued for sale and purchase of shares and admitted that such sale and purchase was done by 'off the floor' transaction.
In such circumstances, when documents like Ex.PW10/A and Ex.PW10/B establish selling of shares of M/s Suma Finance and Investment @ Rs.80.92 is very much reflected in the statement of account of company of PW10 and he has also admitted having issued cheques Ex.PW10/B, I find that rather this witness establish the case of the accused that Mrs. Neelam Jain had been bonafide in selling of these shares through share broker company M/s D.N. Kansal Securities Pvt Ltd company and having obtained payment for same by cheques. In the absence of any evidence showing payment of any commission etc, a sum of Rs.4,92,642/- regarding sale of shares of M/s Suma Finance and Investment should have been added in the income of Mrs. Neelam Jain. Accordingly, it is held that total income of Mrs. Neelam Jain for assessment year 2004-05 comes out to be Rs.5,56,851/- instead of Rs.64,209/-.
CC No.40/2019 CBI vs. Parmod Kumar Jain Page 41 (xxv) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 2005-06 amount Rs.74,246/-.
(xxvi) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 2006-07 amount Rs.1,11,564/-.
(xxvii) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 2007-08 amount Rs.1,60,075/-.
(xxviii)Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 2008-09 amount Rs.1,84,128/-.
(xxix) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 2009-10 amount Rs.2,81,119/-.
(xxx) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 2010-11 amount Rs.4,76,822/-.
(xxxi) Income of Mrs. Neelam Jain w/o Sh. Parmod Kumar Jain for Assessment year 2011-12 amount Rs.6,19,599/-.
(xxxii) Income received during 1.4.2011 to 16.9.2011 (Rent of Dwarka Flat). amount Rs.79,750/-.
(xxxiii)Gift of Rs.50,000/- given by Sh. Prem Chand Jain to Smt. Neelam Jain w/o Parmod Kumar Jain through DD No. 056156 dated 4.3.1999. amount Rs.50,000/-.
(xxxiv)Received money back payment from LIC Policy No. 112804946 commencing from 25.03.2000 in the name of Sh. Parmod Kumar Jain. Period 2004 to 2008 amount Rs.30,000/-.
(xxxv) Received money back payment from LIC Policy No.112473045 in the name of Mrs. Neelam Jain amount Rs.12,500/-.
(xxxvi)Income from gift deed dated 29.05.2002 from Sh. Arvind Kumar Jain to Sh. Parmod Kumar Jain through Canara Bank, Groakhpur DD No.88992 dated 29.05.2002. amount Rs.1,00,000/-.
(xxxvii)Income from gift of Rs.50,000/- from K.C. Jain to Sh.
Parmod Kumar Jain through DD No.187561 dated 20.10.1998 amount Rs.50,000/-.
(xxxviii)Rent received from Property with jointly with Neelam Jain and Sh. Jinendra Kumar Jain at Jallandhar. Period April 2011 to 31.08.2011 amount Rs.1,31,825/-.
CC No.40/2019 CBI vs. Parmod Kumar Jain Page 42 (xxxix)Loan from Sh. Deepak Jain amount Rs.2,00,000/-.
(xl) Loan received from Sh. Samir Kumar Jain. Period November 2007 to April 2011 amount Rs.17,80,000/- as per the details given in the charge sheet Incomes shown from item no.25 to 40 as noted above have not been disputed, therefore taken to be proved on the record. (41). Sale of property i.e. C-186, Sector- Sigma-02, Greater Noida in the name of Mrs. Neelam Jain to Sh. Chetan Bhatia on 7.1.2005. amount Rs.3,78,976/-.
Under the item 41 of statement C prosecution has mentioned the income of Mrs.Neelam Jain to be Rs.3,78,976/- regarding sale of above mentioned property of Greater Noida. As per prosecution Neelam Jain had sold the said plot to Chetan Bhatia for Rs.12 lakhs out of which she had already paid Rs.8,21,024/- to Greater Noida Authority from 14.11.2002 to 07.01.2005, therefore said amount was deducted from the sale consideration and remaining amount i.e. Rs.3,78,976/- has been shown income in the name of Neelam Jain.
On the other hand plea of the accused is that in fact the above said plot was sold by Smt.Neelam Jain to Chetan Bhatia for total sale consideration of Rs.17,60,000/- under an agreement to sell dated 07.01.2005 and since a sum of Rs.12 lakh was already deposited by the vendor/Neelam Jain with Gr. Noida Authority, balance amount of Rs.5,60,000/- was deposited by vendee/Chetan Bhatia as per the demand raised by Gr. Noida Authority, in the name of Mrs.Neelam Jain as at that time the plot in the record of said Authority was in the name of Neelam Jain. It is stated that in fact Smt.Neelam Jain deposited sum of CC No.40/2019 CBI vs. Parmod Kumar Jain Page 43 Rs.1,30,024/- and Rs.1,40,000/- out of her resources in respect of above said property on 03.07.2003 and 17.10.2003. Accused rather relied upon document of prosecution D-43, regarding the details of payments made to GNIDA for the said plot.
During the trial accused has examined DW-1 Kamal Singh from Gr. Noida Authority and deposed that he by letter dated 08.10.2013 had furnished requisite information to Inspector Anil Bisht of CBI as requisitioned and said letter is Ex.DW1/A (D-
43). DW-1 further states that as per the details in that letter, a sum of Rs.1,30,024/- was deposited by Smt.Neelam Jain on 03.07.2003 by DD drawn on Bank of Baroda and Rs.1,40,000/- was also deposited by DD of Bank of Baroda dated 17.03.2003. This witness further stated that on 07.01.2005 total amount of Rs.5,60,000/- was paid by vendee Chetan Bhatia by DDs of different amounts drawn on ABN Amro Bank, though at that time plot was standing in the name of Ms.Neelam Jain. CBI has also relied upon agreement to sell dated 07.01.2005 regarding sale of above said plot by Ms.Neelam Jain which is D-5.
Thus, from the evidence of DW-1, document Ex.DW1/A and D-5, it is proved on the record that the above said property was sold by Ms.Neelam Jain for Rs.17,60,000/- and not for Rs.12 lakhs as alleged by the CBI in the charge sheet. Admittedly as reflected from Ex.DW1/A, Rs.5,60,000/- was paid by the vendee Chetan Bhatia to Gr. Noida Authority by three DDs issued by ABN Amro Bank. This fact has been stated by DW1 also. Vendee paid the said amount to clear the dues so that he can transfer the ownership in his name from the record of Gr. Noida Authority. As such Neelam Jain has actually received Rs.17,60,000/- out of which she had already deposited Rs.12 CC No.40/2019 CBI vs. Parmod Kumar Jain Page 44 lakhs, therefore the net income regarding sale of said plot would come to be Rs.5,58,354/- instead of Rs.3,78,974/- as shown in the charge sheet at item no.41 of Statement C. Item no.42. Income earned through interest from A/c No. 30992245563. Period 2010 to September 2011 amount Rs.6,083/-.
In the charge sheet above said income has been shown at serial no.43 instead of serial no.42. Fact remains that such income and the amount has not been disputed by the accused, therefore taken to be proved on the record.
Submissions regarding additional inflow of income. In the written arguments filed on behalf of the accused, a plea has been taken that a gift of Rs.50,000/- was given by Lal Chand Jain to wife of the accused namely Neelam Jain on 14.10.2002. That amount was credited into the bank account of Neelam Jain on 28.10.2002. However it is submitted that such amount has not been added by CBI in the income/Statement C of charge sheet, despite furnishing of the affidavit by Lal Chand Jain on 26.02.2013, during the investigation. It is submitted that CBI excluded this income of Ms.Neelam Jain on the ground that such amount was not reflected in the ITR, whereas during those days as per the Section 56(2)(v) of Finance Act of 2004, there was no necessity for any assessee to give details of the gift in the ITR.
Having heard the submissions and taking note of the legal provisions as submitted, first of all it be noted that there is a document relied upon by the CBI i.e. D-54 and admitted by the accused as Ex.P-47 which is an affidavit of Lal Chand Jain affirming in that affidavit of having given loan to Mrs.Neelam CC No.40/2019 CBI vs. Parmod Kumar Jain Page 45 Jain for sum of Rs.50,000/- on 14.10.2002 by a bank draft. The fact that such amount was credited in the account of Neelam Jain is also not disputed. In such circumstance when from the documents relied upon by the CBI itself the factum of giving of loan of Rs.50,000/- is being proved by preponderance of probability, in that situation such amount ought to have been included in the income as there is a unrebutted document available on record.
At the stage of charge, on behalf of accused certain heads of income inflow were submitted along with the documents which are following :
(a) Accused Parmod Kumar Jain had taken a gift of Rs.1 lakh from his father in law J.K. Jain by demand draft no.306110 dated 04.06.2002 and intimation in this regard was sent to his department.
(b) Accused Parmod Kumar Jain had withdrawn a sum of Rs.1,25,000/- from his GPF account and intimation in this regard was sent to his department.
Above said items of income inflow have not been proved as per law by the accused. Nor there is any document on the judicial record being part of charge sheet or proved by accused as per law. Although apparently such transaction must have been done as a public servant has informed about such receipt of money to his department but during the trial such documents ought to have been placed on record and proved as per law. This court even in order of charge dated 08.11.2019 while accepting these documents had noted in para 52 that these documents are being accepted subject to proof during the trial, but the same have not been proved. Consequently, above said two amounts CC No.40/2019 CBI vs. Parmod Kumar Jain Page 46 would not be added in the income of the accused/Statement C. However at the stage of charge certain other income flow were raised by the accused which are interest accrued on different mutual funds i.e. ICICI, IDBI, ICICI Bank Bond etc. under which total sum of Rs.16,819/- shown to have been earned by the accused by interest income accrued on those bonds. Those documents are also part of record i.e. D-16, D-15, D-8, D-51, D- 32/13 and D-32/18. Since these documents are relied upon by the CBI and admitted by the accused being Ex.P14, Ex.P13, Ex.P44 etc. Accordingly, such amount of Rs.16,819/- is being added in the income as there is unrebutted document regarding such income inflow.
Thus, from the above discussion under the Statement C which is the calculation of income of the accused and his family member, from known sources same comes out to be Rs.1,15,23,567.56.
Expenditure during the check period Statement-D. Charge sheet has mentioned 39 different heads of expenses in Statement D. Accused has not disputed items mentioned at serial no.1 to 19 as given below.
Item no.1. Premium paid in LIC policy no. 120292489 in the name of Smt. Neelam Jain commencing from 28.9.1993. Period September 1993 to September 2011 amount Rs.71,820/-.
Item no.2. Premium paid in LIC police no.112804946. Amount Rs.66,276/-.
Item no.3. Premium paid in LIC police no. 125332527 in the name of Sh. Parmod Kumar Jain r/o B-23, Sangam Apartment, Rohini, Delhi commencing from 26.12.2009. Period December 2009 to 16.9.2011 amount Rs.40,000/-.
CC No.40/2019 CBI vs. Parmod Kumar Jain Page 47 Item no.4. Premium paid in LIC policy No. 112473045 commencing from 20.1.1999. Amount Rs.60,567/-.
Item no.5. Premium (16,287/- + late fees i.e. Rs.2650/- paid in LIC policy no. 111449928 commencing from 1.8.1991 in the name of Parmod Kumar Jain. Period 1991 to September 2011. Amount Rs.18,937.30.
Item no.6. Premium paid in LIC policy no.280123521 in the name of Sh. Parmod Kumar Jain commencing from 28.2.1988 including late payment charges of Rs.2650/-. Period 1988 to September 2011 amount Rs.2,45,849/-.
Item no.7. Expenditure on Term Deposit with Corporation Bank in A/c No. KCC/01/111452 dated 27.6.2011 in the name of Sh. Parmod Kumar Jain issued on 27.6.2011 and date of maturity is 27.6.2012. Period 27.6.2011 amount Rs.50,000/-.
Item no.8. Premium paid on Bajaj Alliance Policy No.0007427 462 commencing from 28.2.2005 in the name of Parmod Kumar Jain. Period 2005-2011 amount Rs.70,000/-.
Item no.9. Premium paid on Bajaj Allianz Policy No.00687884- 74 commencing from 25.9.2007. Amount Rs.1,50,000/-.
Item no.10. UTI SIP Folio No. 51417439478 starting from 3.1.2006 to 2.1.2008 in the name of Parmod Kumar Jain vide ID No.2868985991. Period January 2006 to January 2008 amount Rs.24,000/-.
Item no.11. UTI SIP Folio No. 50938255056 (old folio No. 2863379021) in the name of Parmod Kumar Jain. Period 16.9.2001 amount Rs.10,000/-.
Item no.12. Investment in Birla Sun Life Mutual Fund having Folio No. 1004991328 on 16.11.1998 in the name of Smt. Neelam Jain. Period 1998 to September 2011 amount Rs.5,000/-.
Item no.13. Payments towards Shalimar Social Club Society, Shalimar Bagh, Delhi by Sh. Parmod Kumar Jain ( date of joining club is 16.12.1998 ). Period December 1998 to September 2011 amount Rs.11,100/-.
Item no.14. Payments towards membership no. P 563 in the CC No.40/2019 CBI vs. Parmod Kumar Jain Page 48 name of Sh. Parmod Kumar Jain since 05/2003 in Rohini Sports Complex. Period May, 2003 to December 2009 amount Rs.26,349/-.
Item no.15. Expenditure towards purchase of UTI Units having folio No.3986634 in the name of Mrs. Neelam Jain. Period 1.8.1992 amount 2,000/-.
Item no.16. Insurance paid towards Tata Indica having registration No. DL3CW6563 in the name of Smt. Neelam Jain w/o Parmod Kumar Jain. Period 2005- 06 amount Rs.13,608/-.
Item no.17. Interest payment towards repayment of Home Loan A/c No. 109722 in the name of Mr. Parmod Kumar Jain at Citi Bank, Mathura Road, New Delhi.
Period 28.6.2002 to 30.6.2010. Amount Rs.
1,73,906/- ( Rs.3.50 lakhs loan disbursed on 28.6.2002 and repaid completely on 30.6.2010. Hence only interest has been taken in expenditure).
Item no.18. Expenditure made towards Maintenance and Ground rent of Flat No. B-23, Sector-9, Rohini, Delhi. Amount Rs.88,044/-.
Item no. 19. Stamp Duty @ 7.2% paid for registration of Flat No. B-23, Sangam Apartments, Sector-9, Rohini on 19.8.2002 in the name of Sh. Parmod Kumar Jain. Amount Rs.46,800/-.
Item no.20. School fee of Ms. Priyanshi Jain d/o Sh. Parmod Kumar Jain in CRPF Public School, Rohini from class I to X for the period from 1996-97 to 2005-06. Period 1996-97 to 2005-06 amount Rs.1,45,395/-.
This item regarding school fee of daughter of the accused namely Priyanshi Jain. It is submitted on behalf of the accused that at the time of calculation of school fee of the daughter of the accused for year 1996-97 to 2005-06, an amount of Rs.4,000/- which was deposited as caution money was refunded by the school and this fact is very much reflected in document D-97, a document relied upon by the CBI. Having considered the document D-97 since the amount of Rs.4,000/- was refunded, therefore the expenditure under the above said head would CC No.40/2019 CBI vs. Parmod Kumar Jain Page 49 reduced to Rs.1,41,395/- instead of Rs.1,45,395/-.
Item no.21. School fee of Ms. Priyanshi Jain d/o Sh. Parmod Kumar Jain in Sanatan Dharam Public School, BU- Block Pitam Pura, New Delhi from class XI to XII for the period from 2006-07 to 2007-08. Period 2006-07 to 2007-08 amount Rs. 40,590/-.
Under the above said head the fee of school of daughter of the accused for year 2006-07 to year 2007-08 is mentioned to be Rs.40,590/-. It is stated that even from document D-98, it came that a sum of Rs.500/- deposited as security was refunded by the college. Expenditure therefore should be reduced by Rs.500/-. Having considered the document D-98, since Rs.500/- were refunded therefore the expenditure under the above said count ought to have been Rs.40,090/- instead of Rs.40,590/-.
Item no.22. Gurgaon College of Engineering for Women fees of Ms. Priyanshi Jain d/o Sh. Parmod Kumar Jain for the period from 2008-09 to September 2011.
Amount Rs.3,36,000/-.
Under the above said head college education of daughter of the accused from 2008-9 to 2011 is mentioned to be Rs.3,36,000/-. It is submitted by the counsel for accused that from document D-86 relied upon by the CBI it is apparent that the said amount was spent by the accused towards hostel expenses including lodging and boarding expenses of his daughter for 37 months i.e. from August 2008 to August 2011 . It is stated that the daughter of the accused remained out of the house as she was staying in hostel for 37 months and accused was not required to spend on her kitchen expenses during the said period of 37 months. It is stated that the kitchen expenses are proportionately are required to be reduced for that reason.
CC No.40/2019 CBI vs. Parmod Kumar Jain Page 50 Having considered such submission, I find no substance in the same because kitchen expenses as per the circular are not to be counted on the basis of number of family members of the public servant. Such expenses are generally counted by 1/3rd deduction of net salary of the public servant. There cannot be minute calculation of kitchen expenses on the basis of family members of the public servant. Such calculation is not warranted in the law. Hence, declined. Consequently, the amount of Rs.3,36,000/- as mentioned in serial no.22 of Statement D is correctly counted for expenditure for women college fee of daughter of the accused.
Item no.23. Conversion charges paid for conveyance deed of Flat No. B-23, Sangam Apartment, Sector-9, Rohini for the period from 2002 to January 2011. Amount Rs.1,04,000/-.
Item no.24. Conversion charges paid for conveyance deed of Flat No. B-702, Rafi Ahmad, Kidwai CGHS, Sector- 7/12-A, Dwarka. In the name of Neelam Jain w/o Sh. Parmod Kumar Jain. Amount 52,020/-.
Item no.25. House Tax paid in r/o Flat No. B-23, Sangam Apartment, Sector-9, Rohini, Delhi. Period August 2002 to June 2006 amount Rs.10,120/-.
Item no.26. Investments in shares in the name of Sh. Parmod Kumar Jain through Paras Ram Holdings Pvt Ltd from 1.4.2007 to 16.9.2011. Period 1.4.2007 to 16.09.2011 amount Rs.2,52,742/-.
Item no.27. Investments in shares through Paras Ram Holdings Pvt Ltd from 200-08 to 16.09.2011 in the name of Neelam Jain having trade A/c No. CSGL-3N.
Period 2007-08 to 16.9.2011 amount Rs.2,05,497/-.
Above stated item no.22 to 27 of expenditure in Statement D have not been disputed by the accused. Value of such expenditure is therefore taken to be proved.
CC No.40/2019 CBI vs. Parmod Kumar Jain Page 51 Item no.28. Expenditure towards the School fees of Master Sanchit Jain s/o Sh. Parmod Kumar Jain at Aadharshila Vidyapeeth, CD Block, Pitam Pura, Delhi-110088 (KG-VI). Period 2000-01 to 2006-07. Amount Rs. 1,41,226/-.
That under the above said head expenditure for school fee of son of the accused has been mentioned. In this regard also while referring to D-99 it is stated that a sum of Rs.3,000/- deposited earlier as caution money was refunded by the concerned school, therefore such amount ought to have been reduced from the expenditure. Having considered D-99 the expenditure under the above said count is calculated to be Rs.1,38,226/- instead of Rs.1,41,226/-.
Item no.29. Expenditure on insurance of Maruti Car 800 registration No. DL4CK1963 in the name of Mrs. Neelam Jain date of purchase 14.7.1999 Maruti 800 Standard. Owner 1999-2000. Amount Rs.6,575/-.
Under the above head expenditure on insurance of car in the name of wife of the accused has been mentioned to be Rs.6,575/-. In this regard while referring to document D-14/111 it is stated that the said amount was included in the invoice of purchase value of Maruti 800 car.
Having considered such submissions and the document D- 14/111 expenditure under the above said count cannot be added in the asset value as well as in the expenditure, therefore amount of expenditure of Rs.6,575/- under the head of insurance premium stands excluded.
Item no.30. Expenditure as stamp duty to the collector of stamp, registration fees Rs.2100/- and pasting fees Rs.100/- for Flat No. B-702, Rafi Ahmad Kidwai CGHS Ltd Sector - 7/12-A, Dwarka, New Delhi. Period 24.12.2010 amount Rs.2,725/-.
CC No.40/2019 CBI vs. Parmod Kumar Jain Page 52 Item no.31. Expenditure on stamp duty i.e. Rs.6,240/-
Registration fees of Rs.1,040/- and pasting fees i.e. Rs.100/- for B-23, DSIDC Friends CGHS, Plot No. 23, Sector-9, Rohini. Amount Rs.7,380/-.
Above stated item no.30 and 31 of expenditure in Statement D have not been disputed by the accused. Value of such expenditure is therefore taken to be proved.
Item no.32. 1/3rd Expenditure of Kitchen expenses. Period November 1987 to September 2011. Amount Rs.17,18,803/-.
Item No.32 has been disputed by the accused. As per prosecution a sum of Rs.17,18,803/- has been counted under the head of kitchen expenses by deducting 1/3rd of gross income from salary of Rs.51,56,410/-.
On the other hand it is submitted by the accused that gross income from salary should be counted not only by deduction of income tax of Rs.2,14,518/- but there should be other necessary deduction which is Rs.7,29,910/-. It is submitted that after deducting from Rs.53,17,928.62 (gross salary income) Rs.7,29,910/- under the heads of necessary deduction including Income Tax, the net salary income comes out to be Rs.46,41,018.62. Deduction of 1/3rd for kitchen expenses ought to be from net salary of Rs.46,41,018.62 which is Rs.15,47,006.21.
Ld. Counsel has relied upon the Circular no.21/40/99-PD dated 29.11.2001, in which it is prescribed that 1/3rd of net income is to be deducted for kitchen expenses. In such situation I am of the view that calculation under the above said head has not been proper. Since it is mentioned in the Circular of the CBI, the judicial notice of which can be taken that 1/3rd of net salary CC No.40/2019 CBI vs. Parmod Kumar Jain Page 53 income should be deducted for kitchen expenses. Since the net salary income of the accused comes out to be Rs.46,41,018.62, the 1/3rd of which comes out to be Rs.15,47,006.21 which is lesser than the amount of Rs.17,18,803/- as mentioned in the charge sheet. Accordingly, under this head expenditure of Rs.15,47,006.21 are counted for kitchen expenses.
Item no.33. Expenditure towards school fees of Master Sanchit Jain s/o Sh. Parmod Kumar Jain w.e.f. 2006-07 to September 2011 from Bal Bharti Public School, Sector-14, Rohini, Delhi-110085. Period 2006-07 to September 2011. Amount Rs. 1,13,570/-.
Item no.34. Expenditure towards Folio No. 516236684596 in the name of Sh. Parmod Kumaer Jain in UTI Infrastruc- ture Fund. Period 2009 to September 2011. Amount Rs.54,000/-.
Item no.35. Expenses towards account Loan No. DL-48 of Sh.
Parmod Kumar Jain for Rs.37,500/- Period September 2001 to April 2003. Amount Rs.6,734/-.
Item no.36. Expenses towards Car Loan A/c No. 190406000000- 19 of Mrs. Neelam Jain for Rs.2.50 lacs w.e.f January 2005 to 03.01.2008. Amount 27,157/-.
Item no.37. Expenditure on Pay Orders for Rs.11.80 lacs favouring Sh. Giriraj Kishore bearing number 175660893 and 175660893 issued from SBI, DC Chowk, Rohini, Delhi. Period 30.04.2011 amount Rs.4,425/-.
Item no.38. Loan of Rs. 2 lacs to Mrs. Anuradha Thakur by Mrs. Neelam Jain through cheque No. 107965. Period 12.11.2008 amount Rs.1,00,000/-.
Item no.39. Expenditure towards interest paid for loan account No. T-6 in the name of Mrs. Neelam Jain and Parmod Kumar Jain. Period December 2001 to January 2005 amount Rs.1,34,762/-.
Above stated item no.33 to 39 of expenditure in Statement D have not been disputed by the accused. Value of such CC No.40/2019 CBI vs. Parmod Kumar Jain Page 54 expenditure is therefore taken to be proved.
Thus, from the above discussion the total amount of expenditure in Statement D comes out to be Rs.44,52,105.51.
55. There is also an argument by defence that sanction order for prosecution against the accused issued u/s 19 of the P.C. Act Ex.PW1/A is invalid as PW1 Keshav Chandra in his cross- examination has admitted that he was provided a draft proforma for sanction order and that he admitted in cross-examination that he did not ask the Vigilance Department of DJB to verify the amount of DA as alleged by the CBI.
56. Having considered such submissions and having gone through the evidence of PW1 in totality, it has come in his evidence that he independently applied his mind on the entire material and then came to the conclusion for according sanction for prosecution against the accused. The sanction order Ex.PW1/A also indicate that all the evidence and facts were taken into consideration. As such I find no substance in such argument advanced on behalf of the accused.
57. In view of the above discussion on the basis of calculations under Statement A, Statement B, Statement C and Statement D let us calculate the disproportionate assets of accused, if any made out :
(A)Assets before check period : Rs.40,000/- (B)Total assets at the end of check period : Rs.74,12,273.24 Assets acquired during check period : Rs.73,72,273.24 (B-A) (C)Total income during check period : Rs.1,15,23,567.56 (D)Expenditure during check period : Rs.44,52,105.51 (E)Likely saving (Rs.1,15,23,567.56 - Rs.44,52,105.51) : Rs.70,71,462.05 (C-D) CC No.40/2019 CBI vs. Parmod Kumar Jain Page 55 (F)Quantum of DA ( Rs.73,72,273.24 - Rs.70,71,462.05): Rs.3,00,811.19 (Assets acquired during check period - Likely Savings) (G)Percentage of D.A. : 2.61%
58. In view of the above said calculation I find that no case is made out for disproportionate asset against the accused. Even otherwise if at all taken into consideration any calculation error, even if some percentage of DA is made out, since it has been held in Kedari Lal vs. State of M.P. 2015 Crl.L.J. 4045 (SC), Ashok Tsering Bhutia vs. State of Sikkim 2011 (3) LRC 93 SC, that if there is a DA upto the extent of 10%, accused should be given benefit of doubt. In this case on the basis of calculation as made under the different heads of Statement B, C and D, it can safely be concluded that the calculation of DA either comes in negative or a marginal amount of DA for which accused is certainly entitled for benefit of doubt.
59. Consequently accused Parmod Kumar Jain stands acquitted for the reasons as stated above.
Announced in the open Court (Shailender Malik) on December 24th, 2021 Special Judge (PC Act) CBI Rouse Avenue Courts, New Delhi CC No.40/2019 CBI vs. Parmod Kumar Jain Page 56