Delhi High Court
Shri Dharambir vs Central Bureau Of Investigation on 13 February, 2009
Author: Manmohan
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Reserved on: December 19th , 2008
Date of Decision: February 13 , 2009
Criminal Revision Petition No. 930 of 2006
Shri Dharambir ..... Petitioner
Through: Mr. Siddharth Luthra, Sr. Advocate
with Mr. Abhijat and Mr. Sunil
Kumar, Advocates.
Versus
Central Bureau of
Investigation ..... Respondent
Through: Mr. Ashiesh Kumar, Advocate
Mr. R.M. Tewari, Advocate
AND
Criminal Revision Petition No. 6 of 2007
Shri K.M. Johri ..... Petitioner
Through: Mr. Atul Kumar, Advocate.
Versus
The State & Anr. ..... Respondents
Through: Mr. Ashiesh Kumar, Advocate
Mr. R.M. Tewari, Advocate
AND
Criminal Revision Petition No.891 of 2006
Shri M.K. Sharma ..... Petitioner
Through: Mr. Mukesh Anand with Mr.
Shailesh Tiwari, Advocates.
Versus
State through CBI ..... Respondent
Through: Mr. Ashiesh Kumar, Advocate
Mr. R.M.Tewari, Advocate
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 1
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the judgment?Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
JUDGMENT
MANMOHAN, J
1. The present three criminal revision petitions have been filed under
Sections 397,401 and 482 of the Criminal Procedure Code, 1973 (hereinafter
referred to as „Cr.P.C.‟) seeking quashing of the order framing Charges dated
23rd September, 2006 passed by Mr. G.P. Mittal, learned Special Judge, CBI,
Delhi. Since the impugned order is common to all the three revision petitions
which arise out of one charge sheet, all the three petitions are being disposed
of by a common order.
2. The details of the Charges mentioned in the Charge Sheet filed by the
respondent is reproduced hereinbelow for ready reference:-
"This case was registered on the basis of source information.
The allegation made in the FIR is that Sh. Dharamvir Khattar
entered into a criminal conspiracy with S/Sh. S.K. Mittal and
P.L. Garg, both JEs of DDA and other unknown DDA officials
and in furtherance of the said conspiracy attempted to cheat and
cause pecuniary loss to Gov. exchequer by using the premises of
Bhairon Mandir Samiti and Hari Chand Prakash Wanti Trust as
hotel as against the agreed religious purposes and the said
DDA officials facilitated the same. Investigation has revealed
that on 17.01.1986, an area of 600 sq. meters was allotted to
Bhairon Mandir Samiti for religious purposes, through Sh.
Dharamvir Khattar at Plot No. 1 near Kalindi College, East
Patel Nagar Institutional Area, Prasad Nagar, New Delhi. The
said allotment for religious purposes was apparently made on
the basis of false declarations by Sh. Dharamvir Khattar and
even the building plan was got sanctioned on the basis of false
declarations in the form of proposed building plan. The
following construction upto second floor was falsely proposed
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 2
as neither the construction nor the use of the allotted land/plot
was done as per the aforesaid declarations:-
1) Basement for storage purposes.
2) Ground floor having 3 rooms i.e. one Account Room, one
Manager‟s Room, one Store, one Kitchen, one Sitting Room, 7
toilets, lift and staircase.
3) Mezzanine floor having 4 store rooms and staircase.
4) First floor having one library room, one dispensary, one
reading room, one Doctor‟s/waiting room, one yoga room each
for ladies and gents, 4 bathrooms, 3 toilets and one store.
5) The second floor having one prayer hall, 3 store rooms,
one meditation room each for ladies and gents, 2 toilets, one
pantry and one lift.
Investigation has revealed that the construction was got
carried out by Sh. Dharamvir Khattar in blatant violation of the
aforesaid approved plan. On 08.07.1988 Sh. Dharamvir
Khattar applied to DDA for issue of completion certificate.
The inspection of the premises was referred/ marked to Sh. K.M.
Johri, JE, Building Branch, DDA, Vikas Sadan, New Delhi as
Prasad Nagar area was under his jurisdiction. As JE
(Building), he was required to inspect and correctly submit a
report about the site regarding unauthorised construction on the
land allotted by the DDA. However, Sh. K.M. Johri entered into
criminal conspiracy with Sh. Dharamvir Khattar and in
pursuance thereof inspected the premises of Bhairon Mandir
Samiti and submitted dishonestely a false NOC report on
16.08.1988 to the effect that the building had been constructed
upto second floor only i.e. as per sanctioned building plan.
Investigation revealed that during the relevant period the said
building was unauthorizedly constructed upto 4th floor on Plot
No. 1, Prasad Nagar and thus Sh. K.M. Johri dishonestly
allowed Sh. Dharamvir Khattar to utilize the unauthorised
construction in the premises of Bhairon Mandir Samiti,
unhindered. On the basis of said false inspection report, the
completion/ occupancy certificate was issued by DDA.
It has also came to light during investigation that from 1989
onwards, Sh. Dharamvir Khattar started misusing the aforesaid
unauthorisedly constructed premises as a restaurant named
„Atithi‟. Investigation has revealed that during 1992- April,
1993 Delhi Fire Service and MCD during their inspection found
that the aforesaid building was named as "Atithi Guest House"
and not "Bhairon Mandir Samiti". The Delhi Fire Service also
found that the premises consisted of 4 floors with 8 Guest
Rooms all very well furnished. A restaurant, reception office,
Kitchen was also situated in the ground floor. The premises
was named as "Atithi Guest House" and not "Bhairon Mandir
Samiti".
Investigation has also revealed that Sh. S. Phogat, JE also
inspected the site on 17.08.1993 and reported that a hotel in the
name of „Basera‟ was running on Plot No. 1, Prasad Nagar,
New Delhi allotted to Bhairon Mandir Samiti. The inspection of
the said building was not allowed and as observed from outside
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 3
a basement, ground floor and 4 floors were existing at that time.
Investigation further revealed that in violation of sanctioned
building plan, Sh. Dharamvir Khattar constructed the said
building upto 4th floor including basement and store and a toilet
on terrace floor. The set back were also covered
unauthorisedly. Even in the year 1997, the misuse of the
premises and unauthorised construction continued unhindered
due to complicity of Sh. Dharamvir Khattar with Sh. M.K.
Sharma, JE as revealed during investigation. It transpired that
as required, on reference of DDA vigilance, Sh. M.K. Sharma
being JE, Institutional Land (having jurisdiction over Prasad
Nagar area), DDA, Vikas Sadan, New Delhi gave dishonestly
false report on 01.05.1997 that there was no misuse of the said
premises and again on 09.06.1998 on another reference from
DDA, Vigilance said M.K. Sharma was required to inspect and
correctly submit a report about the alleged misuse of the
aforesaid land allotted by DDA in Prasad Nagar area as he was
posed as JE, Institutional Land Branch, DDA, Vikas Sadan,
New Delhi. However, Sh. M.K. Sharma dishonestly suggested
in his inspection reports that the said premises was not being
misused. However, on 11.06.1998, the CVO, DDA alongwith
other officials of DDA inspected the premises of Bhairon
Mandir Samiti and found that in fact a Hotel having 35 rooms
with facility of AC, TV was being run by Sh. Dharamvir Khattar
at the above site/ building.
It has also found during investigation that in the year 1999 Sh.
Dharamvir Khattar applied in the office of DCP(Lic) for grant
of license under Entertainment Regulation Act, under the grab
of "Atithi Dharmshala". In that application he admitted in his
own hand that 8 guests rooms exists on Ist, second and third
floor and total floor area utilized for the guest house was 934.50
sq. mtrs. Whereas the approved area was 599.181 sq. mtrs. and
the said building was to be constructed upto second floor only
as per the sanctioned building plan. Even while the lease
cancellation order in respect of the aforesaid premises was
issued by the DDA, after inspection by CVO, DDA on
11.06.1998, the premises continued to be misused in the year
2000-03. During investigation, searches were conducted at the
office of Bhairon Mandir Samiti, Plot No. 1, Prasad Nagar
Institutional Area, East Patel Nagar, New Delhi in March, 2003
in connection with another case i.e. RC AC-3/2003-A-0002
against Sh. Dharamvir Khattar and during searches one bill
book for the period 01.04.2002 to 26.02.2003 and photocopy of
current visitor book was seized which revealed the booking
details by travel agency. During 2002-03, a travel agency by
name and style "Supreme Universal International", Bangalore
and "M/s City Heart Travel, Old Golf Compound, Delhi were
arranging accommodation for tourists at the premises which
was known as BMS (Bharion Mandir Samiti) Hotel. A number
of tourists had stayed at BMS Hotel at 1, Prasad Nagar
Institutional Area, East Patel Nagar, New Delhi during the year
2002-03. M/s. Supreme Universal International, Bangalore had
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 4
issued a bank draft in favour of BMS Hotel towards the payment
of stay of tourists arranged by them and the said demand draft
was deposited in the A/c No. 7264 at Canara Bank, Pahar Ganj
standing in the name of Sh. Kamal Kumar, S/o Sh. Dharmvir
Khattar. Sh. HC Sharma, GM Bharion Mandir Samiti being in
conspiracy with Dharamvir Khattar also intentionally
facilitated misuse of the premises for commercial purposes. He
had also made correspondence with regard to stay of tourists at
the said BMS Hotel. The brochure of BMS Hotel shows that
photographs of four storied hotel with interior restaurant,
corridor, parking house, banquet / conference hall, air-
conditioned rooms, reception, lobby, etc. printed on it with
detail of facilities available in the hotel. It also revealed that
the persons who stayed in the said premises were not involved in
any religious activities nor they observed / saw any religious
activities in the said hotel. It is also revealed that the said hotel
was used exclusively for commercial purpose and no religious
activities of any kind ever took place in the said premises. In
fact there was also a bar-cum restaurant in the hotel. A number
of foreign tourists used to stay in the said hotel and the hotel
had a banquet hall where the birth day / weeding functions were
frequently done by the nearby residents.
Investigation has also established that Sh. Dharamvir Khattar,
not only got the aforesaid plot allotted under the false cover of
religious purposes thereafter also made unauthorized
construction on the plot and used the premises commercially but
also did not pay DDA the ground rent which was about Rs.
2,67,810/0. Thus, Sh. Dharamvir Khattar in criminal
conspiracy with Sh. K.M. Johri, JE (B) and Sh. M.K. Sharma,
JE (IL) both of DDA dishonestly usurped the DDA land but did
not put it to the intended welfare purposes and put the DDA to a
wrongful loss of about Rs. 2,67,810/-.
During investigation it was also revealed that various other
DDA officials committed gross mis-conduct but their acts of
omission / commission do not disclose criminal intent, therefore,
the DDA has been moved to intimate RDA for major penalty
proceedings against them for their lapses.
The sanction for prosecution in respect of the said Sh. K.M.
Johri and Sh. M.K. Sharma is enclosed in original.
The aforesaid facts and circumstances disclose commission of
offences by S/Sh. Dharamvir Khattar, H.C. Shama, M.K.
Sharma and K.M. Johri U/s 120-B, r/w 420 IPC and Section
13(2) r/w 13(1)(d) of PC Act, 1988 and substantive offences U/s
420 IPC and Section 13(2) r/w 13(1)(d) of PC Act, 1988.
It is, therefore, prayed that Sh. Dharamvir Khattar, Sh. M.K.
Sharma, Sh. K.M. Johri and Sh. H.C. Sharma may kindly be
summoned and tried in accordance with law."
3. Mr. Siddharth Luthra, Learned Senior Counsel appearing for Mr.
Dharamvir Khattar contended that the acts and omissions complained of in
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 5
the present charge sheet are prior to coming into force of the Prevention of
Corruption Act, 1988 (hereinafter referred to as „P.C. Act, 1988‟) on 9th
September, 1988. Consequently, he submitted that the P.C. Act, 1988 has no
application and that there cannot be a Charge of conspiracy to commit
offences under the said Act.
4. Mr. Luthra further submitted that there was lack of any material to
frame Charges as in the present case neither the statements made under
Section 161 CrP.C. nor documents filed with the charge sheet satisfy at the
inception the ingredients of Sections 415/420 of the Indian Penal Code
(hereinafter referred to as „IPC‟) as admittedly application for allotment was
made in 1984, the plot was allotted in 1985 and the alleged unauthorized
construction/misuse commenced in late 1980s or early 1990s. He further
contended that there was no document or other material on record which
would even remotely suggest that any unlawful consideration was paid either
by society or the petitioner. He stated that even a bald allegation to this
effect was not present in the charge sheet. According to Mr. Luthra for
substantiating the allegations against the petitioner, prosecution was required
to produce material with the charge sheet which would show existence of
mens rea of the petitioner at the time when the Society initially applied for
allotment of plot in the year 1984. According to him, development of mens
rea subsequently cannot indicate that the petitioner had an intention to cheat
at the time of making its application to DDA. In this connection he referred
to the judgment of the Apex Court in Anil Mahajan v. Bhor Industries Ltd.
& Another, reported in (2005) 10 SCC 228, wherein the Hon‟ble Supreme
Court observed as under:-
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 6
"....... A distinction has to be kept in mind between mere
breach of contract and the offence of cheating. It
depends upon the intention of the accused at the time of
inducement. The subsequent conduct is not the sole test.
Mere breach of contract cannot give rise to criminal
prosecution for cheating unless fraudulent, dishonest
intention is shown at the beginning of the transaction."
5. Mr. Luthra, submitted that by merely making unauthorized
construction, misusing the premises and not paying ground rent, the
Petitioner cannot be charged under IPC or P.C. Act, 1988. According to him,
these alleged contraventions are actionable under the Delhi Municipal
Corporation Act or the Delhi Development Authority Act or under the
provisions of the Lease Deed but not either under IPC or P.C. Act, 1988.
6. He further stated that in a suit filed by Bhaironji Mandir Society
challenging the cancellation of the Lease, the trial court had passed a decree
in favour of the Society declaring the cancellation of Lease by Delhi
Development Authority (hereinafter referred to as „DDA‟) as illegal. He
further stated that even the appeal filed by DDA had been subsequently
dismissed.
7. He further stated that the petitioner was a separate legal entity from
the Society which had been allotted land. He submitted that there was no
concept of fastening of vicarious liability under the IPC or the P.C. Act,
1988. In this context, he referred to and relied upon the judgment of the
Hon‟ble Supreme Court in Maksud Saiyed v. State of Gujarat and others,
reported in (2008) 5 SCC 668.
8. Mr. Luthra stated that the charge sheet alleges that Shri Dharambir
Khattar while committing the aforesaid acts, acted in criminal conspiracy
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 7
with Shri K.M. Johri [JE(B)] and Shri M.K. Sharma, JE(IL). According to
him in the present instance, no witness has even remotely suggested that
there was a meeting of minds between Mr. Khattar and the other co-accused.
He submitted that mere allegation made by the I.O. in the chargesheet that
the petitioner acted in criminal conspiracy with the public servant co-accused
is not enough. He submitted that the chargesheet is only the opinion of the
I.O. The law requires more than this, even at the stage of framing of Charge.
9. Mr. Luthra further submitted that without any material on a mere bald
allegation or mere suspicion or speculation, Charges could not have been
framed against the petitioner. In this connection, he referred to and relied
upon the following judgments:-
(A) In Soma Chakravarty v. State through CBI, reported in (2007) 5
SCC 403, the Hon‟ble Supreme Court has observed as under:-
".......Charge may although be directed to be framed
when there exists a strong suspicion but it is also trite that
the court must come to a prima facie finding that there
exist some materials therefor. Suspicion cannot alone,
without anything more, it is trite, from the basis therefor
or held to be sufficient for framing charge."
(B) In State of U.P. v. Dr. Sanjay Singh & Another, reported in 1994
Supp (2) SCC 707, the Hon‟ble Supreme Court in paragraph 19 has observed
as under:-
"19. When we scrutinize the entire material placed on
record, even if unrebutted or totally accepted, we are of
the view that they do not make out a case for conviction
and the mere suspicion of motive cannot serve as a
sufficient ground for framing the charges in the absence
of any material, prima facie showing that the particular
motive has passed into action and that the accused is
connected with that action in question."
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 8
10. Mr. Atul Kumar, learned counsel appearing for Mr. K.M. Johri
reiterated that P.C. Act, 1988 was not applicable to the present case because
even as per the prosecution, the alleged offence is stated to have been
committed by Mr. K.M. Johri on 16th August, 1988 whereas P.C. Act, 1988
came into force on 9th September, 1988. In this connection he referred to
and relied upon a judgment of this Court in Sukhwant Singh AC. v. Union of
India, reported in 1997 (1) All India Criminal Law Reporter 460, wherein it
has been held, "From the above discussion, it is clear that so far as the first
charge is concerned the authority did not apply its mind. The petitioner
could not have been convicted or sentenced for this charge under Section 7
of the Prevention of Corruption Act, 1988 because the offence alleged to
have been committed during March, 1986 i.e. prior to coming in force of the
Act of 1988." Therefore, according to him neither the P.C. Act, 1988 nor
Section 13(1)(d) of the said Act was applicable to Mr. K.M. Johri.
11. He submitted that there is a distinction between Section 5(1) of the old
Prevention & Corruption Act, 1947 (hereinafter referred to as „ old P.C. Act,
1947‟) and Section 13(1) of the P.C. Act, 1988. According to him, Section
13(1)(d) of the P.C. Act, 1988 is more wide and liberal as it has contemplated
various alternatives whereas Section 5(1)(d) of the old Act is a far more strict
provision and further there are no presumptions under the old P.C. Act, 1947.
12. He further submitted that there was no material/evidence on the trial
court record to show that the accused had received any pecuniary advantage
or valuable thing for himself or for any other accused person and, therefore,
he cannot be held guilty of offences under Section 5(1)(d) of the old P.C.
Act, 1947 or Section 13(1)(d) of the P.C. Act, 1988. He submitted that to
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 9
frame Charges under Section 5(1)(d) of the old P.C. Act, 1947, it is
mandatory to show that the accused had obtained any pecuniary advantage or
valuable thing for himself or for any other person. According to him,
pecuniary advantage or valuable thing connotes gratification or bribe and
further that pecuniary advantage or valuable security should be in reward for
giving of favour. According to him, gratification cannot be over stretched to
mean any benefit derived by the beneficiary. He submitted that "the other
person" mentioned in Section 5(1)(d) of the old P.C. Act, 1947 did not
include the beneficiary of favour. According to him, use of word "other"
excludes the public servant and the beneficiary. Further according to Mr.
Atul Kumar, the important ingredient is obtaining by the accused either for
himself or for any other person. He emphasized that obtaining has to be from
beneficiary of the favour and, therefore, the beneficiary cannot be the "other
person" under Section 5(1)(d) of the old P.C. Act, 1947. According to him
the demand is a mandatory ingredient to attract Section 5(1)(d) of old P.C.
Act, 1947. In this context, he relied upon the following judgments:-
(A) C.K. Damodaran Nair Vs. Govt of India reported in (1997)9 SCC
477 page 52 :-
"12. The position will, however, be different so far as an
offence under Section 5(1)(d) read with Section 5(2) of the
Act is concerned. For such an offence prosecution has to
prove that the accused "obtained" the valuable thing or
pecuniary advantage by corrupt or illegal means or by
otherwise abusing his position as a public servant and that
too without the aid of the statutory presumption under
Section 4(1) of the Act as it is available only in respect of
offences under Section 5(1)(a) and (b) -- and not under
Section 5(1)(c), (d) or (e) of the Act. "Obtain" means to
secure or gain (something) as the result of request or effort
(Shorter Oxford Dictionary). In case of obtainment the
initiative vests in the person who receives and in that
context a demand or request from him will be a primary
requisite for an offence under Section 5(1)(d) of the Act
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 10
unlike an offence under Section 161 IPC, which, as noticed
above, can be, established by proof of either "acceptance"
or "obtainment".
(B) Trilok Chand Jain v. State of Delhi, reported in 1977 Criminal Law
Journal 254, wherein it has been held as under:-
"......that the gratification must have been received by the
accused as "a motive or reward" for committing any act
or omission in connection with his official functions. It
must be shown that there was an understanding that the
bribe was given in consideration of some official act or
conduct. It is true that in law the incapacity of the
government servant to show any favour or render any
service in connection with his official duties does not
necessarily take the case out of the mischief of these penal
provisions. Nevertheless, it is an important factor bearing
on the question as to whether the accused had received
the gratification as a motive or reward for doing or
forbearing to do any official act or for showing any favour
or disfavour in the exercise of his official functions. This
question as to whether the government servant receiving
the money had the requisite incriminatory motive is one of
fact. Could it be reasonably said in the circumstances of
the instant case that the money was handed over to the
appellant or received by him as a motive or reward such
as mentioned in Section 161 Penal Code?"
(C) S.P. Yellappa Gowder v. State of Karnataka reported in 1977
Criminal Law Journal (NOC) 154 (KANT), wherein it has been observed as
under:-
"(B) Prevention of Corruption Act (1947), S.5(1)(d) -
"Abusing his position as public servant" - Accused
(Excise Superintendent and Inspector) staging raid on
godown of tobacco merchant - No evidence regarding
demand and acceptance of illegal gratification - No
offence."
(D) C. Chenga Reddy & others v. State of A.P., reported in (1996) 10
SCC 193, wherein the Hon‟ble Supreme Court has observed as under:-
"On a careful consideration of the material on the
record, we are of the opinion that though the prosecution
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 11
has established that the appellants have committed not
only codal violations but also irregularities by ignoring
various circulars and departmental orders issued from
time to time in the matter of allotment of work of jungle
clearance on nomination basis and have committed
departmental lapse yet, none of the circumstances relied
upon by the prosecution are of any conclusive nature and
all the circumstances put together do not lead to the
irresistible conclusion that the said circumstances are
compatible only with the hypothesis of the guilt of the
appellant and wholly incompatible with their innocence.
In Abdulla Mohammed Pagarkar v. State (Union
Territory of Goa, Daman and Diu), under somewhat
similar circumstances this Court opined that mere
disregard of relevant provisions of the Financial Code as
well as ordinary norms of procedural behavior of
government officials and contractors, without
conclusively establishing, beyond a reasonable doubt, the
guilt of the officials and contractors concerned, may give
rise to a strong suspicion but that cannot be held to
establish the guilt of the accused. The established
circumstances in this case also do not establish
criminality of the appellants beyond the realm of
suspicion and, in our opinion, the approach of the trial
court and the High Court to the requirements of proof in
relation to a criminal charge was not proper. That
because of the actions of the appellants in breach of
codal provisions, instructions and procedural
safeguards, the State may have suffered financially,
particularly by allotment of work on nomination basis
without inviting tenders, but those acts of omission and
commission by themselves do not establish the
commission of criminal offences alleged against them.
We may reiterate that once the report, Ext. P 11, is ruled
out of consideration as inadmissible, then it is not safe to
rely on the mere impressions of the witnesses to hold the
appellants guilty of the offences alleged against
them.............
"........There have been some irregularities committed in
the matter of allotment of work to the appellant or breach
of codal provisions, circulars and departmental
instructions, for preparation of estimates etc. and those
irregularities give rise to a strong suspicion in regard to
the bonafides of the officials of the department and their
link with the appellant, but that suspicion cannot be a
substitute of proof. The courts below appear to have
drawn inferences by placing the burden of proving
innocence on the appellant which is an impermissible
course. In our opinion none of the circumstances relied
upon by the prosecution against the appellant can be said
to have been proved satisfactorily and all those
circumstances, which are not of any clinching nature,
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 12
even if held to be proved do not complete the chain of
evidence so complete as to lead to an irresistible
conclusion consistent only with the hypothesis of the guilt
of the appellant and wholly inconsistent with his
innocence. The prosecution has not established the case
against the appellant beyond a reasonable doubt. This
appeal, therefore, succeeds and is allowed..........."
(E) G.N. Mathur v. C.B.I., reported in 2006(2) JCC 1081, it has been
observed as under:-
".......Insofar as the question of Section 13(1)(d) of the
Prevention of Corruption Act, 1988 is concerned, the
same clearly contemplates the deriving of some valuable
thing or pecuniary advantage by the public servant either
for himself or for someone else. In the present case, no
valuable thing or pecuniary advantage has been derived
so as to bring the conduct of the petitioner under section
13(1)(d) of the said Act. This is so even as per the facts
of the prosecution case. Therefore, there is no question
of framing any charge under Section 13(1)(d) and
consequently, Section 13(2) would also not be
applicable........"
(F) Naveen Chand Johri & Another v. State, reported in 1991 JCC 442,
it has been observed as under:-
"...........By and large, however, if two views are equally
possible and the Judge is satisfied that the evidence
produced before him while giving rise to some suspicion
but not grave suspicion against the accused, he will be
fully within his right to discharge the accused."
13. Mr. Mukesh Anand, learned counsel appearing for Mr. M.K. Sharma
submitted that his client had been charged by way of a presumption and that
too on the basis of two reports dated 1st May, 1997 and 9th June, 1998
prepared by his clients, but which were subsequently verified by higher
officers like Assistant Engineer and Director (Land) and accordingly a show
cause notice dated 17th June, 1998 was issued to Bhairon Mandir Samiti on
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 13
the above reports. He stated that there was no material on record to indicate
that the petitioner had obtained any pecuniary advantage or valuable security
by abusing his position.
14. He further submitted that an inference of presumption had been drawn
against Mr. Sharma by the trial court only on the basis of the role of another
co-accused Mr. K.M. Johri. In this connection, he relied upon paragraphs
19,20 and 21 of the impugned order which are reproduced hereinbelow for
ready reference:-
"19. Of Course, the prosecution has not placed any
direct evidence on record which could show that accused
K M Johri had drawn any valuable thing or pecuniary
advantage for himself or for any other person but from
the conduct of the accused an inference of criminal
misconduct can be drawn as this report was made by K
M Johri so that the unauthorized construction may not
come to the notice of the DDA and the building could be
illegally used by accused Dharamvir Khattar. The words
"by abusing his position" would mean that the public
servants does not act as a prudent man and discards all
the normal and statutory rules and is prepared to
accommodate the third party which may cause loss to the
Government. In Krishna Govind Patil Vs. State of
Maharashtra, AIR 1973, SC 1388, allottees of
Government Waste lands had agreed to pay the price of
the land as also the price of the trees standing thereon.
Assistant Gram Sewak, who was one of the accused, was
found to be responsible for wrong counting of the trees
and illegal cutting of excess trees, on allotted land as
also on the Govt. land. It was held by the Hon‟ble
Supreme Court that the Act of the accused constituted
misconduct punishable U/s 5 (1) (d) and Section 5 (2) of
the PC Act. For these reasons I am of the view that there
are grounds for presuming that accused K M Johri has
committed an offence punishable U/s 13(2) read with
Section 13(1)(d) of the P C Act and there are grounds for
presuming that accused Dharamvir Khattar and K M
Johri have committed an offence U/s 120 B IPC read
with Section 13(2) and 13(1)(d) of the P C Act.
20. Now I turn to the case as against accused M K
Sharma. As per the allegations of prosecution he had
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 14
made false report with regard to the existence of
unauthorized construction and misuse of the premises on
1.5.97 and 9.6.98. Shri Anupam Sharma, learned
Counsel for the accused has taken me through two
reports made by the accused and has urged that there is
nothing false in these reports.
21. I have carefully gone through the two reports. In
the report dated 1.5.97 accused M K Sharma has stated
that the building has been constructed up to top floor
with basement and mezzanine floor. I have already
observed above that there was no mezannine floor.
Moreover, he has not given the number of floors
constructed to show that it was an unauthorized
construction. The information withheld by accused M K
Sharma was very material and vital. Similarly, in his
report dated 9.6.98, accused M K Sharma made a
mention of obtaining of occupancy certificate, rather he
enclosed a copy of the occupancy certificate, with his
report which was sufficient to show that as per
occupancy certificate there was construction of the
basement, ground floor, first floor, second floor and
mezzanine floor. As against this, there was construction
of basement, ground floor, first, second, third and fourth
floor. In view of my discussion herein above in the case
of accused K M Johri an inference of criminal
misconduct can be drawn against accused M K Sharma
also. Thus, I am of the view that there are grounds for
presuming that accused M K Sharma has committed an
offence U/s 13(2) read with Section 13(1)(d) of the P C
Act and there are grounds for presuming that accused
Dharamvir Khattar and M K Sharma have committed
offences punishable U/s 120 B IPC read with section
13(2) and 13(1) (d) of P C Act....."
15. Mr. Mukesh Anand referred to and relied upon the following
judgments :-
A) K.R. Purushothaman v. State of Kerala, reported in (2005) 12 SCC
631, wherein the Hon‟ble Supreme Court has observed as under:-
"13. To constitute a conspiracy, meeting of mind of two
or more persons for doing an illegal act or an act by
illegal means is the first and primary condition and it is
not necessary that all the conspirators must know each
and every detail of conspiracy. Neither it is necessary
that every one of the conspirators takes active part in the
commission of each and every conspiratorial acts. The
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 15
agreement amongst the conspirators can be inferred by
necessary implications. In most of the cases, the
conspiracies are proved by the circumstantial evidence,
as the conspiracy is seldom an open affair, The existence
of conspiracy and its objects are usually deducted from
the circumstances of the case and the conduct of the
accused involved in the conspiracy. While appreciating
the evidence of the conspiracy, it is incumbent on the
Court to keep in mind the well-known rule governing
circumstantial evidence viz., each and every
incriminating circumstance must be clearly established
by reliable evidence and the circumstances proved must
form a chain of events from which the only irresistible
conclusion about the guilt of the accused can be safely
drawn, and no other hypothesis against the guilt is
possible. The criminal conspiracy is an independent
offence in Indian Penal Code. The unlawful agreement is
sine quo non for constituting offence under Indian Penal
Code and not an accomplishment. Conspiracy consists of
the scheme or adjustment between two or more persons
which may be express or implied or partly express and
partly implied. Mere knowledge, even discussion, of the
Plan would not per se constitute conspiracy. The offence
of conspiracy shall continue till the termination of
agreement.
14. The suspicion cannot take the place of legal proof
and prosecution would be required to prove each and
every circumstance in the chain of circumstances so as to
complete the chain. It is true that in most of the cases, it
is not possible to prove the agreement between the
conspirators by direct evidence but the same can be
inferred from the circumstances giving rise to conclusive
or irresistible inference of an agreement between two or
more persons to commit an offence.....
20. The accused-appellant was convicted under
Sections 13(1)(c) and (d) of the Prevention of Corruption
Act, 1988. To constitute an offence under Clause (c) of
Section 13(1) of the Act, it is necessary for the
prosecution to prove that the accused has dishonestly or
fraudulently misappropriated any property entrusted to
him or under his control as a public servant or allows
any other person to do so or converts that property for
his own use. The entrustment of the property or the
control of the property is a necessary ingredient of
Section 13(1)(c). On the findings arrived at by the High
Court, it is obvious that the property was neither
entrusted nor was under the control of the accused-
appellant and thus the accused-appellant could not have
been convicted under the Section.
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 16
21. To, attract the provisions of Section 13(1)(d) of
the Prevention of Corruption Act, public servant should
obtain for himself or for any other person any valuable
thing or pecuniary advantage by corrupt or illegal means
or by abusing his position as a public servant. Therefore,
for convicting a person under the provisions of Section
13(1) (d) of the Prevention of Corruption Act 1988, there
must be evidence on record that the accused has obtained
for himself or for any other person, any valuable thing or
pecuniary advantage by corrupt or illegal means or by
abusing his position as a public servant obtained for
himself, or for any person, or obtain for any person, any
valuable thing, or pecuniary advantage without any
public Interest. What we find in the present case is that
there is no evidence on record to prove these facts that
the accused-appellant had obtained for himself or for any
other person any valuable thing or pecuniary advantage.
We may clarify that the charge of conspiracy being not
proved under Section 120B I.P.C, the accused appellant
could not be held responsible for the act done by A-3.
The prosecution has failed to prove that he has obtained
for himself or for any other person any valuable thing or
pecuniary advantage, Similarly, we do not find any
evidence on record to convict accused-appellant under
Sections 403, 477-A I.P.C."
(B) Shri Sukh Ram v. CBI, reported in 2001 (1) JCC (Delhi) 113,
wherein it has been observed as under:-
"13. Learned counsel for the parties have taken me
through the entire record of the case. It is an accepted
principle that once the tenders are accepted by a
competent authority, changes can only be brought about
in accordance with contract, therefore, the Price
Negotiation Committee (PNC) could review the price in
terms of the contract only. Any digression therefrom was
contrary to accepted lawful norms of commercial
transaction. Once a Department of the Government
chooses to enter the market by way of tenders, it cannot
arrogate to itself the powers of re-evaluating the entire
tender without cancelling the original one. Smt. Runu
Ghosh‟s dissent note brings out clear illegalities that
were being committed by the Price Negotiation
Committee (PNC) and, therefore, being a member of the
Committee had full right to air her opinion. Her
dissenting note is clear and cannot be taken to be an
expression of causing wrongful gain to any particular
party. Besides, she was only one of the members of the
decision making process and could very well be
overruled by superior authorities....
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 17
16. It is submitted by Mr. Dutt, learned counsel for the
CBI that it is not for us to take into consideration what
price was earlier fixed and reasons behind it, but we are
only to Judge the aspect of loss suffered by the exchequer
when it could have been saved. This, to my mind, is not a
correct approach when dealing with commercial venture.
Every time a Government loses in a commercial venture,
does not ipso facto means that all those who contributed
to the decision are guilty of violation of the Prevention of
Corruption Act. What is necessary is to show that there
is mens rea to cause the wrongful gain or loss by acts of
omission or commission that would violate the provisions
of Prevention of Corruption Act. Similarly, to show a
loss is not sufficient to attract the provisions of the Act.
At the cost of reputation price had already been fixed
when tenders were finalized. The prosecution does not
find any fault with that, but wants to say that the new
PNC was wiser than the earlier one. This, to my mind, is
hardly sufficient to hold that any dissent would bring a
public servant within the mischief of the Prevention of
Corruption Act. If ultimately the Price Negotiation
Committee (PNC) had found that earlier price not fixed
properly, the tender could have been cancelled and fresh
one called. Having not done so, it was not permissible to
re-evaluate the enter tender on all aspects other than that
provided under the tender. There is, therefore, no
material on record to show that the Minister had in any
manner exceeded his brief and/or deliberately by any act
of omission and commission unfairly caused loss to the
Government exchequer. There is no material to indicate
any foul play. It has been argued before me that
conspiracies are hatched in mysterious ways. Therefore,
prosecution should be allowed to proceed to bring out
the mysteries. I am not satisfied with this argument. The
material on record must spell out a grave suspicion in
respect of the conspiracy before framing of charges. It is
a serious matter and should be dealt with accordingly.
Mere suspicion is not enough. It must be a grave
suspicion.
17. While swifting the material put up for the
purposes of framing of charges, the Courts should desist
from approaching the subject with suspicion and with a
negative attitude. A Court is required to examine the
material without any preconceived notion, positively and
objectively. The material placed before it must speak
for itself giving rise to grave suspicion. No presumption
can be drawn unless there is cause to do so based on the
material being examined.
18. I do not find any material to support the charges
framed. A Court is bound by the material placed before
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 18
it and not what is in the mind of the prosecution. Over
the time Supreme Court has made us wise on how to
deal with these matters. In Satish Mehra v. Delhi
Administration and another (1996) 9 SCC 766, the
Supreme Court has elaborately dealt with what the
Courts should take into consideration while framing
charge. If two views are equally possible and the Judge
is satisfied that the evidence produced before him while
giving rise to some suspicion but not grave suspicion
against the accused, he will be fully within his right to
discharge the accused. Valuable time of the Court
should not be wasted for holding a trial only for the
purpose of formally completing the procedure to
pronounce the conclusion on a future date. I am certain
that the trial would only be an exercise in futility or a
sheer waste of time. I, therefore, find it a fit case to
truncate the proceedings at this stage.
19. As I have already stated I am of the opinion that
from the material on record, it cannot be inferred that
there was sinister design, malice or motive to bring the
action of the accused within the mischief of the
Prevention of Corruption Act. Governments are not
expected to act as shopkeepers [(1993) (3) SCC 499].
Fairness in the dealings must reflect in each and every
action. I find from the material available before me that
no prima facie case has been made out against the
accused. This is not a fit case to be sent up for trial.
Even if the evidence produced gave rise to some
suspicions, the same is not a grave suspicion that will
justify the accused being sent up for trial."
(C) R. Natarajan & Ors. v. State, reported in 129(2006) Delhi Law
Times 403, wherein it has been held as under:-
"4. Law in this regard is well settled. Charge can be
framed only when the material collected during
investigations gives rise to a grave suspicion and mere
suspicion is not enough. It is also well settled that even
the offence of conspiracy as defined under the Penal
Code has to be proved like any other offence. It is true
that the offence of conspiracy is normally proved by the
circumstantial evidence. Whatever may be the
difficulties, framing of the charge does affect the liberty
of the citizen and in the absence of sufficient material, the
order directing the framing of charge could not sustain."
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 19
16. Mr. Ashiesh Kumar, learned standing counsel appearing for
respondent Central Bureau of Investigation (hereinafter referred to as „CBI‟)
stated that the Case No. RC 39(A)/03-DLI was registered on 11.7.03 on the
basis of source information. According to him, investigation disclosed that
on 17.1.1986 an area of 600 sq. mtr. was allotted by DDA to Bhairon Mandir
Samiti for religious purposes through Sh. Dharamvir Khattar near Kalinki
College, East Patel Nagar, Institutional Area, Prasad Nagar, New Delhi. He
stated that as per the building plan for the said plot, the basement was for
storage purpose, ground floor was for Account Room, Manager‟s Room, one
store, one kitchen, one sitting room, seven toilets, lifts and staircase; first
floor was for library room, one dispensary, one reading room, one
doctors/waiting room, one yoga room each for ladies and gents, four
bathrooms, three toilets and one store room and the second floor was for one
prayer hall, three store rooms, one meditation room each for ladies and gents,
two toilets, one pantry and one lift.
17. According to Mr. Kumar, Sh. Dharamvir Khattar got the plan
sanctioned for construction of building having two floors, however, in
violation of this sanctioned plan he constructed a building having basement,
ground floor plus four floors. After construction of the building Dharamvir
Khattar applied to DDA on 8.7.88 for issue of completion certificate. He
stated that Sh. Dharamvir Khattar had straightaway raised a building having
five floors in 1988-89 and was running one Hotel Atithi as established during
the investigation. According to him, Dharamvir Khattar got institutional land
allotted only for religious purpose, however, his intention was to use this land
for constructing a hotel, which he did after the allotment of land. Therefore,
according to him, Dharamvir Khatar committed offence U/s 420 IPC.
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 20
18. He further stated that the inspection of the premises was done by Shri
K.M. Johri, JE, Building Branch, DDA, Vikas Sadan. He further alleged that
Shri K.M. Johri had furnished a false NOC Report on 16.8.88 in pursuance to
a criminal conspiracy with Sh. Dharamvir Khattar, stating that the above
building had been constructed upto second floor only i.e. as per sanctioned
building plan which was contrary to the facts as instead of two floors Shri
Dharamvir Khattar had constructed basement, ground floor plus four more
floors on the said land. According to him, investigation had further revealed
that on reference by DDA, Vigilance, another inspection was conducted by
Sh. M.K. Sharma, JE, DDA (Institutional Land Branch). Shri M.K.Sharma
also submitted false report on 1.5.97 in pursuance to a criminal conspiracy
with Dharamvir Khattar stating that there was no misuse of the said premises.
Thereafter on receipt of another reference from DDA, Vigilance, Shri M.K.
Sharma again submitted false report on 09.06.98 that the said premises was
not being misused. However, on 11.6.98, the CVO(DDA) inspected the
premises of Bhairon Mandir Samiti and found that in fact a hotel having 35
rooms with facility of AC, TV was being run by Sh. Dharamvir Khattar at the
said site.
19. Mr. Kumar referred to the order framing Charges and handed over a
chart indicating different Sections under which the petitioners have been
charged and the basis for leveling of charges against the petitioners. The said
chart is reproduced hereinbelow for ready reference:-
S. Name of accused U/s Reasons
No
1 Dharamvir 420 IPC and for Use of premises of Bhairon
Khattar, offence punishable Mandir Samiti (BMS) for
President, U/s 120 B IPC r/w Hotel instead of religious
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 21
Bhairon Mandir Section 13(2) and purpose and unauthorized
Samiti Section 13(1)(d) of construction and non-
PC Act payment of ground rent-he
obtained allotment of land
and did unauthorized
construction and used it as
Hotel by misrepresentation
2 K.M. Johri, JE 13(2) r/w 13(1)(d) He gave false inspection
DDA, Building of PC Act and U/s report dated 16.8.88 with
Branch, Vikas 120 IPC r/w Section regard to construction on
Sadan, New Delhi 13(2) and 13(1)(d) BMS being up to 2nd floor
of PC Act, 1988 but the premises was upto
4th floor.
3 M.K. Sharma, JE, 13(2) r/w 13(1)(d) He submitted false report
DDA, Building of PC Act and U/s dated 09.06.98 suggesting
Branch, Vikas 120 IPC r/w Section that premises of BMS was
Sadan, New Delhi 13(2) and 13(1)(d) not being misused and did
of PC Act, 1988 not indicate any
unauthorized construction
where as CVO DDA on
11.06.98 found misuse and
unauthorized construction
on the premises and on the
basis of such inspection
show cause notice dated
17.06.98 containing the
observation of inspection
dated 11.06.98.
20. Mr. Kumar also referred to an evidentiary chart giving the gist of
allegation, the witnesses and the documents relied upon for leveling such
Charges by the CBI. The evidentiary chart filed by the CBI counsel against
the three petitioners is reproduced hereinbelow for ready reference:-
EVIDENTIARY CHART IN CASE OF SH. DHARAMVIR KHATTAR
GIST OF Obtaining allotment of plot no. 1, Prasad Nagar,
ALLEGATION Rajender Nagar, New Delhi on 17.01.96 having
an area of 600 sq. mtr. for religious purposes in
the name of Bhairon Mandir Samiti on false
declaration.
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 22
PROSECUTION PW-9 Sh. Manish Garg, Deputy Director,
WITNESS Institution Land Branch, DDA proved that the
plot above was allotted for religious purposes
and premises.
PW-2 S.R.Kailey R/o Prasad Nagar, proved
that a Hotel Athithi in the above premises was
existing which was a four or five storied
building constructed in 1988-89. The
construction of the building was not constructed
in parts and the same was constructed in one
time and started to be used as Hotel since then.
He also proved that about 15 years back he
attended the marriage function of his friend in
the basement of the said building and that no
religious activities were ever noticed by him in
the premises.
PW-1 K.K.Gupta, R/o Prasad Nagar and a
retired Air Force Officer proved that he
conducted marriage of his daughter in the
basement of the said premises and also that
Hotel was in existence since 1980s or early
1990s.
PW-14 Sh. R.S. Yadav proved that on the asking
of Dharamvir Khattar he prepared a site plan
as per the actual structure about four storey of
the said premises, he also proved that during
physical inspection in 1991 by him he found
that the premises was a Hotel with a restaurant
running at ground floor. All the rooms are very
well furnished containing TV, ACs etc. and
there was no sign of any religious activity going
on in that building.
PROSECUTION D-19 is perpetual lease deed dated 17.01.86
DOCUMENTS showing allotment of plot in question to BMS
through Dharamvir s/o late Hari Chand on
lease basis for religious purposes.
GIST OF ALLEGATION Obtaining sanction of the building plan in the
form of proposed sanction building plan, which
contained false declarations/ dimensions of the
building.
PROSECUTION PW Tapan Mandal, Joint Director (Building)
WITNESS sanction building plan on Bharion Mandir
Samiti of proposed under the signature of Sh.
Dharamvir Khattar and his Architect and the
same was sanctioned on 11.03.86 for
construction upto second floor.
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 23
PW-16 Sh. Avdesh Kumar, AE Building, DDA
proved that the accused K.M. Johri conducted
inspection of premises at Plot No.1, East Patel
Nagar, in August 88.
PROSECUTION D-20 dated 25.08.88 is the occupancy
DOCUMENTS certificate issued by Sh. Avdesh Kumar
regarding construction upto 2nd floor.
D-22 dated 16.8.88 is the NOC report of K.M.
Johri regarding construction upto 2nd floor
only.
CONCLUSION Statement of the above witness coupled with the
fact straight away a five storied building with
different dimensions which could be used as a
Hotel was constructed instead of a different set
up as was mentioned in the building sanction
plan clearly established accused Dharamvir
Khattar had an intention to run a Hotel instead
of using the building for religious activity. The
accused Dharamvir Khattar got allotted an
institutional land for religious purpose with an
intention to use it for Hotel and thus, he has
committed the offence of cheating U/s 420 IPC.
There was an inducement to DDA to allot the
institution land year marked for religious
purpose on which a Hotel was to be run.
GIST OF ALLEGATION Using the plot and constructed premises for
Hotel for commercial purposes instead of
religious purposes.
PROSECUTION PW-2 S. Tangraj, Lecturer, Bishop Cotton
WITNESS Women Christian College proved that in the
year 2002 he along with his students stayed in
the Bhairon Mandir Samiti Hotel as tourists as
part of the adventure club and made relevant
entries in the register maintained therein.
PW-5 Sayyad Abdul Azim, Proprietor, Supreme
Universe International, Bangalore, proved that
he had several time arranged stay of tourists in
Hotel Bhairon Mandir Samiti and even to Hotel
Hari Prakash. He also stated that co-accused
H.C.Sharma, Manager of the Hotel boosted of
his close relations with Dharamvir Khattar and
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 24
Devraj Khattar.
PW-6 Sh. Brijender Rai, Chief Vigilance Officer
of DDA proved that in June 1988 he acted on
an information that Dharamvir Khattar using
the above premises as Hotel instead of religious
purposes for which the land allotted by DDA to
Khattar and also that unauthorized
construction took place on the plot. Firstly, he
personally verified the information and found it
to be true and on a specific query the staff of the
Hotel assured him he would get anything in the
Hotel food, whisky and women for a price. He
also observed unauthorized construction in the
premises. Thereafter, a formal surprise check
was conducted by a team headed by him.
PW-7 Sh. P.S. Utarvar, Deputy Director, DDA,
Vikas Sadan proved that in August 1993, the
unauthorized construction and use of the
premises as Hotel was detected by Sh.
S.Phogat, JE and Sh. Ripin Prakash, AE.
PW-8 Sh. Sukhbir Phogat, JE proved that on
inspection he found the premises having
unauthorized construction containing basement,
ground floor, first floor, second floor, third
floor and fourth floor and a Hotel was running
in the premises namely Basera.
PW-10 R.P. Gola, Zonal Inspector, Special
Cell, MCD, Karol Bagh that in March 1992
MCD found that the above property consisted of
basement, first floor, second floor, third floor
and fourth floor and there was Hotel Athithi
being run in it. He also stated that on 13.03.96
President Bhairon Mandir Samiti wrote to
MCD that the premises was not open to public
which was complete lie as in 1998 itself it was
found that it was used as Hotel. Since, the
Assistant of the Hotel had been confirmed the
ratable value of the premises was fixed as
applicable on commercial premises at Rs.
20,00,000/- on even in March, 1998. Even in
October, 2001 it was found by the MCD that
there was one small room which was being used
as Mandir and that the premises had a five star
building and owner was running as a Hotel.
PW-12 Sh. Hari Kishan, Assistant Divisional
Officer, Delhi, Fire Service proved that in
March, 1992 on a reference from DCP
Licensing the above premises was inspected
and it was found that it contained four floors
and each floor containing eight guest rooms
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 25
and terrace floor having kitchen, lift room etc.
He also proved that the premises was being
used as a Hotel.
PW-13 Rajender Prasad, Head Constable, DCP
Licensing proved that Sh. Dharamvir Khattar
vide his application dated 17.11.99 in the office
of DCP Licensing admitted that the said
premises was construced upto the fourth floor,
each floor consisted of eight rooms. No license
was granted to Bhairon Mandir Samiti for
running a Guest House/Dharamshala.
PW-15 Sh. Akhilesh Kumar Barnawal, Addl.
Commissioner (Admn.) Meerut Division,
Meerut.
PW-16 Sh. Avdesh Kumar, AE Building, DDA
proved that accused K.M. Johri conducted
inspection of premises of Plot No. 1, East Patel
Nagar in August, 88.
PW-17 Sh. Amar Chatterjee, Deputy Director,
IL, DDA proved that accused M.K. Sharma, JE
in his report suggested that there was neither
unauthorized construction nor any misuse of
premises as Hotel (BMS) and that DDA
Vigilance on 11.06.1998 found that premises of
Bhairon Mandir Samiti was being used as Hotel
and unauthorized as Hotel and the construction
therein was unauthroised. He also proved
report submitted by M.K. Sharma was false
which allows Dharamvir Khattar to utilise
unauthorized construction.
PW-18 Sh. J.B. Sharma, Photographer, DDA
proved that he took photograph of Bhairon
Mandir Samiti on 5.11.93 along with Sh.
Phogat, JE and found that the said premises
was being used as a Hotel and the building was
palatial and luxurious and that he did not see
religious working.
PROSECUTION D-14 is the rough sketch showing
DOCUMENTS unauthorized construction at
D-15 is the report of S. Phogat regarding
pasting of show cause notice.
D-16 and D-17 are the false inspection report
dated April, 1997 and June, 1998.
D-19 is perpetual lease deed dated 17.01.1986
showing allotment of plot in question to BMS
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 26
through Dharamvir S/o late Hari Chand on
lease basis for religious purposes.
D-23 is application dated 17.11.1999 signed
by Dharamvir Khattar showing construction
upto 4th floor and each floor containing eight
rooms.
D-25 is the brochure of BMS showing
unauthorized construction and luxurious
structure.
D-26 is the letter dated 11.12.2003 of
Accounts Officer of DDA addressed to SP CBI
showing non-payment of ground rent in
respect of BMS.
D-27 is the pending ground rent including
interest.
D-28 dated 14.06.2003 is the video graphy
memo showing that basement in BMS was used
for marriage function and consisted of 4 floor
and each containing 8 rooms and also that all
the rooms are furnished in fantastic manner
with double bed CTV and AC (which have
already been removed).
D-32 dated 08.08.2001 is the inspection report
of Delhi Fire Service.
CONCLUSION The above evidences clearly established that
after taking control of land from the DDA with
dishonest intention and in furtherance of
conspiracy, accused Dharamvir Khattar not
only continued to use the premises for Hotel
against declared religious purposes but also
did not pay the ground rend and put the DDA
to a wrongful loss of Rs. 2,67,810/-.
EVIDENTIARY CHART IN CASE OF SH. K.M. JOHRI
GIST OF ALLEGATION Accused K.M. Johri prepared false NOC report in
connivance with accused Dharamvir Khattar in
getting the occupancy certificate for the building.
PROSECUTION PW-16 Sh. Avdesh Kumar, AE Building DDA proved
WITNESS that accused K.M. Johri inspected the premises at
Plot No. 1, East Patel Nagar and prepared and
submitted the NOC report dated 16.08.1998 and on
the basis of such NOC report Dharamvir Khattar
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 27
was issued occupancy certificate dated 05.08.1988.
PW-2 S.R. Kailey R/o Prasad Nagar proved that a
Hotel Athithi in the above premises was existing
which was a four or five storied building constructed
in 1988-89. The construction of the building was not
constructed in parts and the same was constructed in
one time and started to be used as Hotel since then.
He also proved that about 15 years back he attended
the marriage function of his friend in the basement of
the said building and that no religious activities were
ever noticed by him in the premises.
PW-1 K.K. Gupta R/o Prasad Nagar and a retired
Air Force Officer proved that he conducted marriage
of his daughter in the basement of the said premises
and also that Hotel was in existence since 1980s or
early 1990s.
PROSECUTION D-22 is the NOC report shows construction of two store
DOCUMENTS rooms, 6 rooms, 1 kitchen, 7 toilets, 1 lift, and one stair
case on the first floor, one hall, two rooms, 2 stores, 1
pantry, 2 toilets, 1 lift and 1 stair case on the second
floor and a mezzanine floor consisting of just 4 rooms
and a stair case.
CONCLUSION The above evidences clearly established the criminal
misconduct on the part of Sh. K.M. Johri as he has
prepared the false inspection report so that
unauthorized construction may not come to the notice
of the DDA and the building could be illegally used
by accused Sh. Dharamvir Khattar and in this way
accommodated the third party i.e. accused Dharamvir
Khattar causing loss to the Government.
EVIDENTIARY CHART IN CASE OF SH. M.K. SHARMA
GIST OF ALLEGATION Accused M.K. Sharma prepared false inspection
reports so that the unauthorized construction and
misuse of premises of Bhairon Mandir Samiti
continues in connivance with accused Dharamvir
Khattar.
PROSECUTION PW-6 Sh. Brijender Rai, Chief Vigilance Officer of
WITNESS DDA proved that in June 1988 he acted on an
information that Dharamvir Khattar using the above
premises as Hotel instead of religious purposes for
which the land allotted by DDA to Khattar and also
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 28
that unauthorized construction took place on the plot.
Firstly, he personally verified the information and
found it to be true and on a specific query the staff on
the Hotel assured him he would get anything in the
Hotel food, whisky and women for a price. He also
observed unauthorized construction in the premises.
Thereafter, a formal surprise check was conducted by
a team headed by him.
PW-17 Sh. Amar Chatterjee, Deputy Director, IL,
DDA proved that accused M.K. Sharma, JE in his
report suggested that there was neither authorized
construction nor any misuse of premises as Hotel
(BMS) and that DDA Vigilance on 11.06.1998 found
that premises of Bhairon Mandir Samiti was being
used as Hotel and unauthorized as Hotel and the
construction therein was unauthorized. He also
proved report submitted by M.K. Sharma was false
which allows Dharamvir Khattar to utilize
unauthorized construction.
PROSECUTION D-16 and D-17 are the false inspection reports dated
DOCUMENTS April 1997 and June 1998.
D-25 is the brochure of BMS showing unauthorized
construction and luxurious structure.
D-28 dated 14.06.2003 is the video graphy memo
showing that basement in BMS was used for
marriage function and consisted of 4 floors and each
containing 8 rooms and also that all the rooms are
furnished in fantastic manner with double bed CTV
and AC (which have already been removed).
CONCLUSION The above evidences clearly established that Sh. M.K.
Sharma has not given the number of floors
constructed to show that it was an unauthorized
construction. The information withheld by accused
M.K. Sharma was very material and vital. In his
report dated 09.06.1998 accused M.K. Sharma made
an invention of occupancy certificate, rather he
enclosed a copy of occupancy certificate which was
sufficient to show that as per occupancy certificate
there was construction of basement, ground floor,
first floor had mezzanine floor as against this there
was actual construction of basement, ground floor,
second, third, fourth floor. Thus, Sh. M.K. Sharma
prepared his reports so that unauthorized
construction including the misuse may not come to the
notice of DDA and thus accommodated the third party
i.e. Dharamvir Khattar, causing loss to the
Government pay the ground rend and put the DDA to
a wrongful loss of Rs.2,67,810/-."
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 29
21. Mr. Ashiesh Kumar referred to and relied upon the following
judgments:-
A) M. Narayanan Nambiar v. State of Kerala reported in 1963 (2)
Crl.L.J. 186, where the Apex Court held as under:-
"9...........The preamble indicates that the Act was passed as it
was expedient to make more effective provisions for the
prevention of bribery and corruption. The long title as well as
the preamble indicate that the Act was passed to put down the
said social evil i.e. bribery and corruption by public servant.
Bribery is a form of corruption. The fact that in addition to the
word "bribery" the word "corruption" is used shows that the
legislation was intended to combat also other evil in addition to
bribery. The existing law i.e. Penal Code was found insufficient
to eradicate or even to control the growing evil of bribery and
corruption corroding the public service of our country. The
provisions broadly include the existing offences under Ss.161
and 165 of the Indian Penal Code committed by public servants
and enact a new rule of presumptive evidence against the
accused. The Act also creates a new offence of criminal
misconduct by public servants though to some extent it overlaps
on the pre-existing offences and enacts a rebuttable
presumption contrary to the well known principles of Criminal
Jurisprudence. It also aims to protect honest public servants
from harassment by prescribing that the investigation against
them could be made only by police officials of particular status
and by making the sanction of the Government or other
appropriate officer a pre-condition for their prosecution. As it
is a socially useful measure conceived in public interest, it
should be liberally construed so as to bring about the desired
object, i.e. to prevent corruption among public servants and to
prevent harassment of the honest among them."
B) Ram Narayan Popli v. Central Bureau of Investigation reported in
(2003) 3 SCC 641, where the Apex Court held as under:-
"342.It would be appropriate to deal with the question of
conspiracy. Section 120B of IPC is the provision which provides
for punishment for criminal conspiracy. Definition of 'criminal
conspiracy' given in Section 120A reads as follows:
"120A--When two or more persons agree to do or cause to be
done,--
(1) an illegal act, or
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 30
(2) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an
offence shall amount to a criminal conspiracy unless some act
besides the agreement is done by one or more parties to such
agreement in pursuance thereof".
The elements of a criminal conspiracy have been stated to be:
(a) an object to be accomplished, (b) a plan or scheme
embodying means to accomplish that object, (c) an agreement
or understanding between two or more of the accused persons
whereby, they become definitely committed to co-operate for the
accomplishment of the object by the means embodied in the
agreement, or by any effectual means, and in the jurisdiction
where the statute required an overt act. The essence of criminal
conspiracy is the unlawful combination and ordinarily the
offence is complete when the combination is framed. From this,
it necessarily follows that unless the statute so requires, no overt
act need be done in furtherance of the conspiracy, and that the
object of the combination need not be accomplished, in order to
constitute an indictable offence. Law making conspiracy a
crime, is designed to curb immoderate power to do mischief
which is gained by a combination of the means. The
encouragement and support with co-conspirators give to one
another rendering enterprises possible which, if left to
individual effort, would have been impossible, furnish the
ground for visiting conspirators and abettors with condign
punishment. The conspiracy is held to be continued and
renewed as to all its members wherever and whenever any
member of the conspiracy acts in furtherance of the common
design. For an offence punishable under Section 120-B
prosecution need not necessarily prove that the perpetrators
expressly agree to do or cause to be done illegal act: the
agreement may be proved by necessary implication. Offence of
criminal conspiracy has its foundation in an agreement to
commit an offence. A conspiracy consists not merely in the
intention of two or more, but in the agreement of two or more to
do an unlawful act by unlawful means. So long as such a design
rests in intention only, it is not indictable. When two agree to
carry it into effect, the very plot is an act in itself, and an act of
each of the parties, promise against promise, actus contra
actum, capable of being enforced, if lawful, punishable if for a
criminal object or for use of criminal means.
343. No doubt in the case of conspiracy there cannot be any
direct evidence. The ingredients of offence are that there should
be an agreement between persons who are alleged to conspire
and the said agreement should be for doing an illegal act or for
doing by illegal means an act which itself may not be illegal.
Therefore, the essence of criminal conspiracy is an agreement
to do an illegal act and such an agreement can be proved either
by direct evidence or by circumstantial evidence or by both, and
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 31
it is a matter of common experience that direct evidence to
prove conspiracy is rarely available. Therefore, the
circumstances proved before, during and after the occurrence
have to be considered to decide about the complicity of the
accused."
22. Having perused the judgments and having heard the parties at length, I
am of the opinion that where the material placed before the Court disclose
grave suspicion against the accused, the court would be fully justified in
framing a Charge and proceeding with the trial. In Soma Chakravarty's case
(supra) and in Union of India (UOI) Vs.Prafulla Kumar Samal and Anr.
reported in AIR 1979 SC 366, the Apex Court has succinctly outlined the
approach to be adopted by the trial courts while framing Charges. The
relevant observations of the Hon‟ble Supreme Court in both the cases are
reproduced hereinbelow for ready reference:-
A) In Soma Chakravarty v. State through CBI (supra), the Hon‟ble
Supreme Court has observed as under:-
"10. It may be mentioned that the settled legal
position, as mentioned in the above decisions, is that if
on the basis of material on record the Court could
form an opinion that the accused might have
committed offence it can frame the charge, though for
conviction the conclusion is required to be proved
beyond reasonable doubt that the accused has
committed the offence. At the time of framing of the
charges the probative value of the material on record
cannot be gone into, and the material brought on
record by the prosecution has to be accepted as true at
that stage. Before framing a charge the court must
apply its judicial mind on the material placed on
record and must be satisfied that the commitment of
offence by the accused was possible. Whether, in fact,
the accused committed the offence, can only be
decided in the trial.
xxx xxx xxx
14. In our opinion when a person signs on a document
he or she is expected to make some enquiry before
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 32
signing it. In fact, accused Soma Chakravarty was
never assigned any duty in respect of processing or
signing the bills for ad hoc advertisements, and she
was assigned duty only of regular advertisements.
Moreover, these bills were not sanctioned/approved by
the competent authority i.e. the Chairman/Executive
Director.
15. No doubt Soma Chakravarty contended that she
signed these fake bills by negligence but without any
mala fide intention, but this is a matter which,in our
opinion, is to be seen at the time of the trial. There are
serious allegations of misappropriation of a huge
amount of money belonging to the government, and it
cannot be said at this stage that there is no material at
all for framing the charge against her. Hence, we
agree with the view taken by the High Court in this
connection."
(emphasis supplied)
B) In Union of India (UOI) Vs.Prafulla Kumar Samal and Anr.
(supra), the Hon‟ble Supreme Court has observed as under:-
"10. Thus, on a consideration of the authorities mentioned
above, the following principles emerge :
(1) That the Judge while considering the question of framing the
charges under Section 227 of the Code has the undoubted power
to sift and weigh the evidence for the limited purpose of finding
out whether or not a prima facie case against the accused has
been made out:
(2) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been properly
explained the Court will be fully justified in framing a charge
and proceeding with the trial.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay down
a rule of universal application. By and large however if two
views are equally possible and the Judge is satisfied that the
evidence produced before him while giving rise to some
suspicion but not grave suspicion against the accused, he will be
fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the
Code the Judge which under the present Code is a senior and
experienced Court cannot act merely as a Post Office or a
mouth-piece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence and the
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 33
documents produced before the Court, any basic infirmities
appearing in the case and so on. This however does not mean
that the Judge should make a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was
conducting a trial.
(emphasis supplied)"
23. Keeping the above approach in mind, this Court finds that the present
case is based on circumstantial evidence and the following facts prima facie
disclose a grave suspicion against Mr. Khattar:-
(i) Mr. Khattar was the President of Bhairon Mandir
Society.
(ii) Mr. Khattar executed the Lease Deed between Bhairon
Mandir Society and DDA.
(iii) Mr. Khattar‟s continuously corresponded with DDA in
regard to this property.
(iv) Allotment of the institutional plot at concessional rates
was for religious purposes.
(v) The sanction of the building plan was for a two-storied
building.
(vi) Building was constructed by Bhairon Mandir Society at
one go and not in stages.
(vii) In 1988-89 i.e. at the initial stage itself a five-storied
building had been constructed by the Society during the tenure
of Mr. Khattar as its president.
(viii) Since late 1980s or early 1990s that means at the initial
stage itself the said building was being used as a hotel with well
furnished rooms containing TVs and ACs, a restaurant and with
no signs of religious activity for which the plot had been allotted
to the society. In fact, during the year 1992-93, Delhi Fire
Service in its inspection found that the aforesaid building was
being used as "Athithi Guest House" and that the premises
consisted of four floors with eight well furnished guest rooms.
A restaurant, reception office and a kitchen were found
operational during the said inspection. Even brochures, booking
material and bill books were recovered which show that the
premises were being used as a Hotel.
24. The aforesaid facts would show not only unauthorized construction
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 34
and misuse of the premises but would also prima facie disclose a grave
suspicion that Mr. Khattar had an intention to cheat at the inception stage,
that means, at the initial stage of applying for land to DDA itself. In my
opinion, in the cases of circumstantial evidence, as rightly pointed out by Mr.
Ashiesh Kumar, there is rarely available any direct evidence in the form of a
witness suggesting meeting of minds between the various co-accused.
25. As far as Mr. M.K. Sharma and Mr. K.M. Johri are concerned, the fact
that they gave inspection reports in August, 1988 as well as May 1997 and
June, 1998 that the building constructed by Bhairon Mandir Society was in
conformity with the building plan and its user raises a grave suspicion that
Mr. K.M. Johri and Mr. M.K. Sharma while holding offices as a public
servant, obtained for Mr. Khattar and the Bhairon Mandir Society a
pecuniary advantage without any public interest. Consequently, it cannot be
said at this stage that the Charge framed against the petitioners are either
groundless or baseless or based on mere suspicion or speculation.
26. As far as arguments that Mr. Khattar is an independent separate legal
entity from Bhairon Mandir Samiti and that for lapses/breaches committed by
the said Society, Mr. Khattar cannot be blamed, are concerned, I am of the
view that the circumstantial evidence in the present case prima facie discloses
that it was Mr. Khattar who was not only the President of the said Society but
also the moving force behind the organisation and that he executed the lease
deed with DDA and continuously corresponded the with officials of DDA.
27. This Court is further of the view that the petitioners‟ argument that
violation of DMC/DDA Act or building by-laws can never constitute
offences under IPC or P.C. Act, is untenable in law because if direct or
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 35
circumstantial evidence discloses ingredients of offences under IPC or P.C.
Act, then the same would be attracted as is the present case.
28. As far as Mr. Luthra‟s submission with regard to suit by Bhairon
Mandir Society having been decreed declaring DDA‟s cancellation of Lease
Deed as illegal is concerned, this Court is of the considered view that the said
judgment would offer no assistance to the petitioners inasmuch as in the said
civil proceedings admittedly neither the allegations nor the evidence
mentioned in the charge sheet had been placed on record or considered.
29. This Court is further of the view that the petitioners‟ argument that
P.C. Act, 1988 has no application to the present case is misconceived on facts
and untenable in law inasmuch as the present RC had been registered by CBI
on the basis of source information on 11th July, 2003, whereas by virtue of
Section 30(1) of P.C. Act 1988, the old P.C. Act of 1947 stood repealed on
9th September, 1988. This Court is further of the opinion that after 9th
September, 1988, no FIR or charge sheet could have been filed charging any
accused with offences under the old P.C. Act, 1947. In fact, Section 30(2) of
P.C. Act, 1988 clearly stipulates that any action taken or purported to have
been taken under the old P.C. Act, 1947 shall be deemed to have been done
or taken in pursuance to the P.C. Act of 1988. Section 30 of the P.C. Act,
1988 is reproduced hereinbelow for ready reference:-
"THE PREVENTION OF CORRUPTION ACT, 1988
30. Repeal and saving.--(1) The Prevention of Corruption Act,
1947 (2 of 1947) and the Criminal Law Amendment Act, 1952
(46 of 1952) are hereby repealed.
(2)Notwithstanding such repeal, but without prejudice to the
application of section 6 of the General Clauses Act, 1897 (10 of
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 36
1897), anything done or any action taken or purported to have
been done or taken under or in pursuance of the Acts so
repealed shall, in so far as it is not inconsistent with the
provisions of this Act, be deemed to have been done or taken
under or in pursuance of the corresponding provision of this
Act."
(emphasis supplied)
30. In my view, the judgment of Sukhwant Singh's case (supra) is
inapplicable to the facts of the present case as in the said judgment it was
held that the petitioner could not have been convicted under the provision of
Section 7 of the P.C. Act, 1988 because the said provision was not in force at
the relevant time. In the present case, the only dispute is whether the old
P.C. Act, 1947 was to apply or the P.C. Act, 1988. In my opinion, in view of
the categorical language used in Section 30 of the P.C. Act, 1988, it is the
new P.C. Act, 1988 that will apply in the present case.
31. Undoubtedly, Section 13(1) of the P.C. Act, 1988 is far more wide in
its language and ambit in contrast to Section 5(1) of the old P.C. Act, 1947.
Both Section 5(1) of the old P.C. Act, 1947 and Section 13(1) of the P.C.
Act, 1988 are reproduced hereinbelow for ready reference :-
"PREVENTION OF CORRUPTION ACT, 1947
5. Criminal misconduct in discharge of official duty.
(1) A public servant is said to commit the offence of criminal
misconduct in the discharge of his duty -
(a) If he habitually accepts or obtains or agrees to accept or
attempts to obtain from any person for himself or for any other
person, any gratification (other than legal remuneration) as a
motive or reward such as is mentioned in Section 161 of the
Indian Penal Code, 1860 (Act 45 of 1860); or
(b) If he habitually accepts or obtains or agrees to accept or
attempts to obtain for himself or for any other person, any
valuable thing without consideration or for a consideration
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 37
which he knows to be inadequate, from any person whom he
knows to have been, or to be, or to be likely to he concerned in
any proceeding or business transacted or about to be transacted
by him, or having any connection with the official functions of
himself or of any public servant to whom he is subordinate, or
from any, person whom he knows to be interests in or related to
the person so concerned; or
(c) If he dishonestly or fraudulently misappropriates or
otherwise converts for his own use any property entrusted to
him or under his control as a public servant or allows any other
person so to do; or
(d) If he, by corrupt or illegal means, or by otherwise, abusing
his position as public servant, obtains for himself or for any
other person any valuable thing or pecuniary advantage.
PREVENTION OF CORRUPTION ACT, 1988
"13. Criminal misconduct by a public servant :--(1) A public
servant is said to commit the offence of criminal misconduct, -
(a) If he habitually accepts or obtains or agrees to accept or
attempts to obtain from any person for himself or for any other
person any gratification other than legal remuneration as a
motive or reward such as is mentioned in Section 7; or
(b) If he habitually accepts or obtains or agrees to accept or
attempts to obtain for himself or for any other person, any
valuable thing without consideration or for a consideration
which he knows to be inadequate from any person whom he
knows to have been, or to be, or to be likely to he concerned in
any proceeding or business transacted or about to be transacted
by him or having any connection with the official functions of
himself or of any public servant to whom he is subordinate, or
from any, person whom he knows to be interests in or related to
the person so concerned; or
(c) If he dishonestly or fraudulently misappropriates or
otherwise converts for his own use any property entrusted to
him or under his control as a public servant or allows any other
person so to do; or
(d) If he, -
(i) By corrupt or illegal means, obtains for himself or for any
other person any valuable thing or Pecuniary advantage; or
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 38
(ii) By abusing his position as a public servant, obtains for
himself or for any other person any valuable thing or pecuniary
advantage; or
(iii) While holding office as a public servant, obtains for any
person any valuable thing or pecuniary advantage without any
public interest; or
(e) If he or any person on his behalf, is in possession or has, at
any time during the Period of his office, been in possession for
which the public servant cannot satisfactorily account, of
pecuniary resources or property disproportionate to his known
sources of income.
Explanation. -For the purposes of this section "known sources
of income" means income received from any lawful source and
such receipt has been intimated in accordance, With the
provisions of any law, rules or orders for the time being
applicable to public servant."
(emphasis supplied)
32. Consequently, Section 13(1) is not only more wide, but it also
contemplates various alternatives and provides for more presumptions.
Further as I have already reached the conclusion that the P.C. Act, 1988
applies to the present proceedings, the argument of Mr. Atul Kumar with
regard to absence of necessary ingredients of Section 5, namely that there
was no material/evidence to show that the accused had received any
pecuniary advantage or valuable thing, ceases to be of any relevance or
consequence.
33. As far as Mr. K.M. Johri and Mr. M.K. Sharma‟s contentions that they
only gave preliminary inspection report which had been verified by higher
officers and further as a consequence of these reports, a show cause notice
was issued to Bharion Mandir Society, are concerned, this Court is of the
view that these are defences of the accused on merits and they cannot be
considered at the present stage of framing of charges.
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 39
34. Moreover, I may mention that I am exercising revisional jurisdiction
and as I do not find any illegality, impropriety, irregularity in the impugned
order, I dismiss each of the three petitions. However, it is clarified that any
observation made in the present order would not prejudice either of the
parties and the trial court would apply its mind independently and decide the
case in accordance with law.
MANMOHAN, J
FEBRUARY 13 , 2009
sb/rn
Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 40
