Uttarakhand High Court
Swetabh Suman vs Central Bureau Of Investigation on 5 March, 2022
1
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 164 of 2019
Swetabh Suman
..... Appellant
Versus
Central Bureau of Investigation ....Respondent
Present:- Mr. Vikram Chaudhary, Senior Advocate assisted by Mr.
Rishi Sehgal and Mr. Priyanshu Gairola, Advocates for the
appellant.
Mr. Ejaz Khan, Special Public Prosecutor with Mr. Dara Singh
and Ms. Monika Pant, Advocates for the CBI.
Criminal Appeal No. 115 of 2019
Dr. Arun Kumar Singh
..... Appellant
Versus
Central Bureau of Investigation ....Respondent
Present:- Mr. N. Hariharan, Senior Advocate assisted by Mr. Ramji
Srivastava, Advocate for the appellant.
Mr. Ejaz Khan, Special Public Prosecutor with Mr. Dara
Singh and Ms. Monika Pant, Advocates for the CBI.
Criminal Appeal No. 116 of 2019
Dr. Arun Kumar Singh
..... Appellant
Versus
2
Central Bureau of Investigation ....Respondent
Present:- Mr. N. Hariharan, Senior Advocate assisted by Mr. Ramji
Srivastava, Advocate for the appellant.
Mr. Ejaz Khan, Special Public Prosecutor with Mr. Dara
Singh and Ms. Monika Pant, Advocates for the CBI.
Criminal Appeal No. 125 of 2019
Rajendra Vikram Singh
..... Appellant
Versus
Central Bureau of Investigation ....Respondent
Present:- Mr. V.B.S. Negi, Senior Advocate assisted by Mr. Milind Raj,
Advocate for the appellant.
Mr. Ejaz Khan, Special Public Prosecutor with Mr. Dara Singh
and Ms. Monika Pant, Advocates for the CBI.
Criminal Appeal No. 138 of 2019
Gulab Devi
..... Appellant
Versus
Central Bureau of Investigation ....Respondent
Present:- Mr. Rajiv Duggal, Advocate for the appellant.
Mr. Ejaz Khan, Special Public Prosecutor with Mr. Dara Singh
and Ms. Monika Pant, Advocates for the CBI.
3
Criminal Appeal No. 139 of 2019
Gulab Devi
..... Appellant
Versus
Central Bureau of Investigation ....Respondent
Present:- Mr. Rajiv Duggal, Advocate for the appellant.
Mr. Ejaz Khan, Special Public Prosecutor with Mr. Dara Singh
and Ms. Monika Pant, Advocates for the CBI.
JUDGMENT
Hon'ble Ravindra Maithani, J.
Since common questions of facts and law are
involved in all these appeals, they are heard together
and being decided by this common judgment.
2. Present appealsare preferred against the
judgment and order dated 13.02.2019 passed in CBI
Case No. 12 of 2010, CBI v. Swetabh Suman and others
("the case"), and in Miscellaneous Case No. 09 of 2014,
CBI v. Swetabh Suman and others, by the court of
Special Judge/CBI, Dehradun ("the Miscellaneous
Case").
3. By the impugned judgment and order, the
appellant Swetabh Suman (hereinafter referred to as "A-
1"), has been convicted under Section 11 and Section
13 (2) read with Section 13(1) (e) of the Prevention of
Corruption Act, 1988 (for short, "the Act") and
sentenced as hereunder:-
(i) Under Section 11 of the Act - Rigorous
imprisonment for a period of 5 years and
a fine of Rs. 10,000/-. In default of
payment of fine, simple imprisonment for
a further period of two months.
(ii) Under Section 13 (2) read with Section
13(1) (e) of the Act - Rigorous
imprisonment for a period of 7 years and
a fine of Rs. 3,50,70,414/-. In default of
payment of fine, simple imprisonment for
a further period of 18 months.
4. The appellant Gulab Devi (hereinafter referred
to as "A-2) has been convicted under Section 109 IPC
read with Section 13(2) read with Section 13(1)(e) and
Section 11 of the Act, and sentenced to undergo
rigorous imprisonment for a period of one year and a
fine of Rs. 10,000/-. In default of payment of fine,
simple imprisonment for a further period of two
months.
5. The appellant Arun Kumar Singh (hereinafter
referred to as "A-3") has been convicted under Section
109 IPC read with Section 13(2) read with Section
13(1)(e) and Section 11 of the Act, and sentenced to
undergo rigorous imprisonment for a period of 4 years
and a fine of Rs. 20,000/-. In default of payment of fine,
simple imprisonment for a further period of four
months.
6. The appellant RajendraVikram Singh
(hereinafter referred to as "A-4) has been convicted
under Section 109 IPC read with Section 13(2) read
with Section 13(1)(e) and Section 11 of the Act, and
sentenced to rigorous imprisonment for a period of 4
years and a fine of Rs. 20,000/-. In default of payment
of fine, simple imprisonment for a further period of four
months.
7. By the impugned judgment and order, the
following properties have been confiscated in favour of
the Government of India under the provisions of
Criminal Law Amendment Ordinance (No. 38) of
1944("the Ordinance"), read with Section 5(6) of the
Prevention of Corruption Act, 1988:-
(i) Rs. 1,00,000/- cash, which were
recovered from the search of the house of
A-1.
(ii) House No. 169/21, Rajpur Road,
Dehradun, registered in the name of A-2.
(iii) Plot No. 10, Block C, Sector 50, Noida,
registered in the name of A-2.
(iv) Honda City Car bearing registration No.
DL 2C F 0021, registered in the name of
A-2.
(v) Hotel Uruvela International, Bodhgaya,
Bihar, registered in the name of A-3.
(vi) Flat No. B-122, Panchwati Apartment,
Sector 62, Noida, registered in the name
of A-4.
(vii) Flat No. 303, IRS, Officers Society, V-33,
Vatayan Nehru Enclave, Gomtinagar,
Lucknow.
(viii) Land situated at Village Pondha, which
were purchased in the name of Abhay
Kumar Singh by way of the following sale
deeds:-
(a) Sale Deed No. 4069 dated
03.12.2002
(b) Sale Deed No. 721 dated
24.02.2003
(c) Sale Deed No. 722 dated
24.02.2003
(d) Sale Deed No. 75 dated
08.01.2003
(e) Sale Deed No. 723 dated
24.02.2003
(f) Sale Deed No. 1641 dated
14.05.2003
(g) Sale Deed No. 3343 dated
23.07.2004
(h) Sale Deed No. 429 dated
05.02.2004
(i) Sale Deed No. 3344 dated
23.07.2004
(ix) Land situated at Village Pondha, which
were purchased in the name of Vinay
Kumar by way of sale deeds as
hereunder:-
(a) Sale Deed No. 2693 dated
09.08.2002
(b) Sale Deed No. 934 dated
19.03.2003
(c) Sale Deed No. 2753 dated
16.08.2002
8. Criminal Appeal No. 164 of 2019 has been
preferred by A-1 against his conviction and sentence
recorded in the case.
9. Criminal Appeal No. 115 of 2019 has been
preferred by A-3 against the order of confiscation of
Hotel Uruvela International Bodhgaya, Bihar, as
recorded in the Miscellaneous Case. A-3 has also
preferred Criminal Appeal No. 116 of 2019 against his
conviction and sentence recorded in the case.
10. Criminal Appeal No. 125 of 2019 has been
preferred by A-4 challenging the impugned judgment
and order passed in the case as well as in the
Miscellaneous Case.
11. Criminal Appeal No. 138 of 2019 has been
preferred by A-2 against her conviction and sentence
recorded in the case. In Criminal Appeal No. 139 of
2019, A-3 has challenged the order passed in the
Miscellaneous Case, by which the properties have been
confiscated.
FACTS
The Appellants:
12. Before the facts are narrated, it would be apt
to first narrate about the status of the appellants,
which is as hereunder:-
(i) A-1 was the Additional Commissioner of
Income Tax, Jamshedpur, when the FIR
was lodged against him. He is a
permanent resident of Village Bara,
Tehsil Nabinagar, District Aurangabad,
Bihar. He joined Group "A" services on
09.01.1989.
(ii) A-2 is the mother of A-1. The details of
her children are as hereunder:-
(a) Elder son is Amitabh Suman, a
doctor settled in U.S.A.
(b) Second son is A-1.
(c) Youngest son Arunabh Suman,
practicing as an Advocate in
Delhi since 2000.
(d) Mrs. Suniti Suman, the
daughter, who is married to
A-3. She was working as a
Lecturer.
(e) Mrs. Supreeti Suman
(daughter), working as a
Lecturer.
(iii) A-3 is the husband of the sister of A-1.
He at the relevant time was Reader in the
Magadh University, Bodhgaya.
(iv) A-4 at the relevant time was working in
the Education Department in Dehradun
Prosecution Case:
13. The CBI, Dehradun received a reliable source
information that A-1, working as Additional
Commissioner, Income Tax, Jamshedpur was leading a
luxurious life and had amassed assets in his own
name, in the names of A-2 and other family members
and benamisbetween 1.4.1997 and31.03.2004, which
prima facie appears to be disproportionate to his known
source of income. The check period in the FIR was
between 01.04.1997 and 31.03.2004. The properties,
which were mentioned in the source information were:-
(i) Plot No. 169/21, Rajpur Road, Dehradun
measuring 752.50 sq.mts. in the name of
A-2 and sister Smt. Suniti Suman. A very
huge house was constructed on it in the
year 2001-03 at the cost of more than
Rs. one crore;
(ii) Agricultural land measuring 14.435
acres in village Pondha, Dehradun in the
name of different persons purchased by
A-1 during July, 2002 to March, 2003 for
a total amount of Rs. 18,17,500/-,
whereas the market value of the land
was about Rs. one crore.
(iii) A-1 also purchased Plot No. 10, Block C,
Sector 50, Noida, Gautam Buddha
Nagar, U.P.in the name of A-2 for Rs.
15,20,640/-. The cost of the land was
about Rs. 60,00,000/-.
(v) A-1 owns a hotel, namely, Uruvela
International at Bodhgaya, Bihar about
five years back since receipt of source
information. Details of source
information have been given in the FIR,
which is as hereunder:-
"1. ASSETS/SAVINGS OF SWETABH SUMAN AND HIS MOTHER
GULAB DEVI AS ON 31.3.97 (Before check period.)
S. No. Description Value (In Rs.)
1. Likely savings of Swetabh 4,02,722.00
Suman
2. Likely savings of his mother 42,75,000.00
Gulab Devi
3. Total 46,77,722.00
2. INCOME OF SWETABH SUMAN AND HIS MOTHER GULAB
DEVI DURING 1.4.97 TO 31.3.2004: (During Check Period)
S. No. Description Value (In Rs.)
1. Salary of Shri Swetabh Suman 20,66,431.00
2. Income of his mother Smt. 35,77,000.00
Gulab Devi from agricultural
land and family pension
Total 56,43,431.00
3. EXPENDITURE OF SWETABH SUMAN DURING 1.4.97
TO 31.3.2004
S. No. Description Value (In Rs.)
1. Kitchen expenditure 1/3 of the 6,88,810.00
salary income of Shri Swetabh
Suman
4. ASSETS OF SWETABH SUMAN AND HIS MOTHER GULAB
DEVI AS ON 31.3.2004
Immovable properties
S. No. Description of the property Value (In Rs.)
1. House No. 169/21, Rajpur Road, 1,03,30,000.00
Dehradun, constructed during
2001 to 2003
2. Land in Village Pondha, Dehradun 22,24,400.00
purchased during 2002-03
3. Plot No. 10, Block-C, sector-50, 18,03,920.00
Noida
4. Investment for Membership in 1,00,000.00
Uttaranchal Services Housing
Association, Dehradun during
5. Investment for Membership in IRS 1,00,000.00
Officers Coop. Housing Society,
Lucknow during 2003
Total 1,45,58,320.00
Moveable Properties:-
S. No. Description Value (In Rs.)
1. Balance in SB A/c No. 2723 in 1,04,879.77
Dena Bank, Balbir Road,
Dehradun in the name of Smt.
Gulab Devi
2. Balance in SB A/C No. 22148 in 802.80
Central Bank of India, Gaya
Branch in the name of Dr
Baijnath Kumar Singh and Smt.
Gulab Devi
3. Balance in SB A/c No. 2380 in 8,188.08
Central Bank of India, Gaya
Branch in the name of Dr.
Baijnath Kumar Singh and Smt.
Gulab Devi
4. Balance in SB A/c No. 15252 in 2,71,406.50
SBI, Nabhinager in the name of
Gulab Devi and Suniti Suman
Total 3,85,277.15
Total value of Immovable + 1,49,43,597.00
Movable Properties
The value of disproportionate assets (D.A.) computed
on the basis of the above is summarized as under:-
S. No. Description Value (In Rs.)
1. Assets/savings at the beginning of 46,77,722.00
check period as on 31.3.97
2. Assets at the end of the check period 1,49,43,597.00
as on 31.3.2004
3. Assets acquired during the check 1,02,65,875.00
period
4. Income during the check period of 56,43,431.00
Shri Swetabh Suman and his
mother Smt. Gulab Devi
5. Expenditure during the check period 6,88,810.00
(Kitchen expenses 1/3 of the income
of Swetabh Suman)
6. Likely savings during the check 49,54,621.00
period of Swetabh Suman and his
mother Smt. Gulab Devi
7. Disproportionate assets 53,11,254.00
14. According to the FIR, the assets acquired by
A-1 in his own name and in the names of his family
members were disproportionate to the extent of Rs.
53,11,254/- to his known source of income, which he
cannot satisfactorily account for.
15. Based on the source information, a regular
case was lodged and investigation proceeded. The
Investigating Officer ("the IO") recorded statements of
various witnesses. During investigation, search was
made at various places, including the house of A-1, A-2
and A-3; many documents were seized, which were
examined by the forensic experts; the reports were
received. The IO also got valuation of the properties
done. After investigation, chargesheet was submitted
against the appellants for the offences punishable
under Section 13(2) read with Section 13(1) (e) and
Section 11 of the Act, and Section 109 IPC. A detailed
description was given by the IO in the chargesheet,
mainly disclosing as hereunder:-
(i) A number of complaints were
received against A-1 while he was
posted at Dehradun.
(ii) When these complaints were under
scrutiny, the files relating to these
complaints were removed/stolen by
A-1 to avoid legal/disciplinary
action against him.
(iii) During the search in the instant
matter, these files were recovered
from the residential premises of A-1.
The files were handed over to the
local police by the CBI. The police
after investigation had submitted a
chargesheet against A-1 under
Section 380, 411 IPC.
(iv) A-1 had no immovable property in
his name, except ancestral property.
16. The IO also made statements "A", "B", "C" and
"D" of A-1. It is reproduced as hereunder:-
"Statement-'A' (Assets at the beginning of check
period:01.04.97)
Immovable Properties:- Nil
Movable Properties:-
S. No. Description Amount (Rs.)
1. Swetabh Suman (A-1) had invested Rs. 37600
13,500/- in purchase of 300 shares of
Bank of India, Rs. 19,000/- in the
various UTI Schemes and Rs. 5100/- in
the bond of M/s Tisco.
2. Swetabh Suman (A-1) opened a PPF A/c 83704
No. 9798/6 at SBI, Jamshedpur on
31.03.1997. Thereafter it was transferred
to SBI, Main Branch, Dehradun and
again transferred to SBI, Jamshedpur on
05.08.2005. Being old account, the bank
could not provided the balance in the
account as on 31.03.1997 as such as per
the passbook of said A/c, the balance
amounting to Rs. 83,704/- was taken as
the balance on 31.03.1`997
3. Swetabh Suman (A-1) has a bank A/c 13802
No. 01190035817 at SBI, Jamshedpur
which was opened prior to the check
period. Being old account bank could not
provide the balance as on 31.3.1997.
However, on the basis of the bank pass
book of the said A/c recovered from the
house of Swetabh Suman (A-1), the
balance shown in the pass book of said
account of Rs. 9,129/-. Similarly,
Swetabh Suman (A-1) opened a bank
A/c No. C/1088 SBI, Jagjeevan Nagar,
Dhanbad on 04.07.1991 and it was
having balance of Rs. 4673/- as on
31.03.1997
4. Swetabh Suman (A-1) purchased a 46086
Revolver from Small Arms Factory,
Kanpur on 18.06.1996 for Rs. 41,400/-.
He had also purchased a second hand
.22 bore Rifle and firty.22 cartridges for
Rs. 4686/- from M/s A.T. Daw& Co.,
Bistupur, Jamshedpur on 30.12.96
Total 181192
Statement-'B' (Assets at the end of check period:
05.08.2005
Immovable Properties:- Nil
Movable Properties:-
S. No. Description Amount (Rs.)
1. Swetabh Suman opened a PPF Account 1027619
No. P00909438 in the name of his son
SiddharthNilabh at SBI, Main Branch, on
05.12.2000 which was subsequently got
transferred to SBI, Jamshedpur on
27.07.2005. He himself has opened a PPF
account no. 9798/6 in SBI, Asansol (West
Bengal) which was opened on 18.01.1996.
Subsequently this A/c was transferred to
SBI, Jamshedpur and from here it was
transferred to SBI, Main Branch,
Dehradun on 30.08.2000 and thereafter it
was again transferred to SBI, Jamshedpur
on 03.08.2005. The balance as on
05.08.2005 emerged in both the accounts
has emerged as Rs. 10,27,619/-
2. Swetabh Suman (A-1) has been found to 229331
be maintaining various bank accounts
during the check period i.e. SB A/c No.
01190035817 at SBI, Jamshedpur,
opened on 22.08.1996, having amount of
Rs. 1,44,580/-, a/c no. 01190/082495 at
SBI, Mujafar Nagar Branch, opened on
22.06.1999, this a/c was subsequently
transferred to SBI, Main Branch,
Dehradun on 17.10.2000 where it was
renumbered as a/c No. 0119114111. It
was having amount of Rs. 2617/-. The
A/c No. 01190006913 at SBI, Doranda,
Ranchi was having an amount of Rs.
72,919/-. Account opened on 12.08.1998
was having balance of Rs. 185/- and a/c
No. C-1088 at SBI, Dhanbad, opened on
04.07.1991 was having balance of Rs.
9030 as on 05.08.2005.
3. Swetabh Suman (A-1) has made 768500
investments in Tax Relief Bonds, SBI
Mutual Funds, Bonds and shares of
various companies. All the investments
have been verified, which emerged to the
tune of Rs. 768500/-
4. Swetabh Suman (A-1) still possess the 46086
aforesaid revolver and Rifle as such the
amount has been taken into account.
5. During search, an Inventory memo was 1386060
prepared in the presence of independent
witnesses of the house hold goods. The
value as assessed was reflected in front of
the article including an Ambassador car
No. BR 17C-0021. Swetabh Suman has
explained that said car was given to him
by Sh. Ramadhar Singh, Ex-MLA of
Gurua, Bihar. However, he did not
produce any copy of the intimation, if any,
given to his Department. Moreover, Sh.
Ramadhar Singh has also denied to give
such car to him. Hence, the cost of said
car as assessed at the time of search i.e.
Rs. 1,50,000/- has been included in his
assets and total value of the house hold
items was assessed to the tune of Rs.
13,86,060/-
6. During search cash amount of Rs. 100000
1,00,000/- was also recovered. However,
out of the said amount Rs. 25,000/- was
left in the house of Swetabh Suman to
meet out day-to-day expenses.
7. The residential search of Swetabh Suman 736938
(A-1) also led to the recovery of gold
ornaments which were valued from an
approved jeweler Shashikant C. Adesara,
of Jamshedpur on the date of search
Total 4294534
Statement-'C' (Income during check period)
S. No. Description Amount (Rs.)
1. The details of net payments received by 1879115
Swetabh Suman (A-1) from his office
where he remained posted during the
check period were collected.
2. Swetabh Suman received survival 20000
banefit/refund of Rs. 20,000/- from LIC
against Insurance Police No. 550378802.
3. The details of interest/dividends received 227035
by Swetabh Suman on various investment
during the check period have been
collected which emerged as Rs. 227035/-
4. The PPF accounts Swetabh Suman has 364918
received total amount of Rs. 3,39,517/- as
interest. Similarly, he received interests
from his bank account i.e. Rs. 1246/-
from A/c No. 01190035817 at SBI,
Jamshedpur, Rs. 10349/- from A/c No.
01190035817 at SBI, Jamshedpur, Rs.
10349 from A/c No. 0119114111 at SBI,
Main Branch, Dehradun, Rs. 710/- from
A/c No. 10579 maintained at Central
Bank of India, Bodhgaya, Bihar, Rs.
4357/- from A/c No. C/1088 at SBI,
Dhanbad Branch, Ranchi and Rs. 8739/-
from A/c No. 1190006913 at SBI,
Doranda Branch, Ranchi.
Total 2491068
Statement-'D' (expenditure during the check period)
S. No. Description Amount (Rs.)
1. Swetabh Suman (A-1) has received a total 659429
net salary of Rs. 18,79,115/- and gross
salary of Rs. 21,00,992/- during the
check period. Accordingly, the one third of
the said amount i.e. Rs. 6,59,429/- of
gross salary after income tax deduction of
Rs. 1,22,703/- has been taken towards
the kitchen expenses, as per the yardstick
adopted in DA cases.
2. Swetabh Suman (A-1) had two insurance 249176
policies from M/s Max New York Life
Insurance Company Limited, Dehradun in
the name of his son and self. He paid a
total of Rs. 50,000/-. He is also having
three life insurance policies of LIC,
Jamshedpur. So far he paid total premia
of Rs. 2,49,176/-
3. Swetabh Suman (A-1) had paid Transport 30000
charges to M/s Maan Transport,
Dehradun for transporting of household
items from Dehradun to Jamshedpur
4. Swetabh Suman (A-1) had purchased 7891
ammunition of Rs. 7,891/- from M/s
Ranchi Gun House, Ranchi
5. Swetabh Suman (A-1) paid donations to 56100
various organizations i.e. Rs. 5100/- to
Shri Aurbindo Society, Dehradun, Rs.
21,000/- to Him Jyoti Foundation,
Dehradun and Rs. 30,000/- through three
separate receipts to SarveshreeSamuhu,
Jamshedpur
6. Swetabh Suman (A-1) paid an amount of 39015
Rs. 33,755/- as fees charges of his son
Siddharth Nilabh to Riverdale Public
School, Dehradun for the period from
August 1999 to March, 2005 and Rs.
5260/- on 18.07.2005 as fees of his son to
Loyola School, Jamshedpur
7. Swetabh Suman (A-1) paid 3762
accommodation charges of Rs. 3762/- to
JUSCO, Jamshedpur.
8. Swetabh Suman (A-1) paid an amount of 10000
Rs. 10,000/- to M/s Dee Dee Motors,
Dehradun for repair of his car No. BR-17-
C-0021
9. Swetabh Suman (A-1) paid an amount of 72000
Rs. 72,000/- to M/s President Travels,
Dehradun for getting air journey tickets.
10. Swetabh Suman (A-1) paid an amount of 4798
Rs. 4,798/- as food expenses to ITBP
Mess, Dehradun
11. The approximate petrol expenses of Rs. 12360
12,360/- worked out according to the
meter reading i.e. 3094 recorded at the
time of search has been taken as expenses
12 As per the statement of Sh. Santosh Deep, 37500
a domestic help of Swetabh Suman (A-1),
he received a sum of Rs. 37,500/- during
the period from June 1999 to July 2005 @
Rs. 500/- per month as his salary from
Sh. Swetabh Suman, hence it has been
taken as his servant salary expenses.
Total 1182031
COMPUTATION OF DISPROPORTIONATE ASSETS OF SWETABH
SUMAN (A-1)
S. No. Description Amount (Rs.)
1. Assets at the end of the check period 4294534
(Statement B)
2. Assets at the beginning of check period 181192
(Statement A)
3. Assets acquired during the check period 4113342
(B-A)
4. Expenses during the check period 1182031
(Statement D)
5. Total assets & expenses during the check 5295373
period (B-A+D)
6. Income during the check period 2491068
(Statement C)
7 Disproportionate Assets (B-A+D-C =DA) 2804305
113%
17. The IO also found that the following
properties were purchased by A-1 in the name of
others:-
(i) House No. 169/21, Rajpur Road,
Dehradun, Uttarakhand
(ii) Agricultural land at Village Pondha,
Dehradun, Uttarakhand
(iii) Plot No. 10, Block C, Sector 50,
Noida, Gautam Buddha Nagar,
U.P.
(iv) Hotel Uruvela International,
Bodhgaya, Bihar
(v) Plot No. 12-A, Uttaranchal Services
Housing Association ("USHA")
Dehradun.
(vi) Flat No. 303, IRS, Officers Society,
V-33, Vatayan Nehru Enclave,
Gomtinagar, Lucknow
(vii) Flat No. B-122, Panchwati
Apartment, Sector 62, Noida
(viii) Shop No. F-1, F-12 and F-24 in
Medow Shopping Plaza
Complex, Dehradun
(ix) Plots measuring 413 sq.mts and
530 sq.mts. at Village Bagral,
Mussoorie-Dehradun Diversion
Road, Dehradun
18. The IO also prepared "A", "B", "C" and "D"
statement of A-2 and revealed it in the chargesheet.
19. Based on the "A", "B", "C" and "D" statement,
the IO made computation of disproportionate assets of
A-2 as hereunder :-
"COMPUTATION OF DISPROPORTIONATE ASSETS
S. No. Description Amount (Rs.)
1. Assets at the end of the check 14010824
period (Statement B)
2. Assets at the beginning of check 633467
period (Statement A)
3. Assets acquired during the 13377357
check period (B-A)
4. Expenses during the check 1007877
period (Statement D)
5. Total assets & expenses during 14385234
the check period (B-A+D)
6. Income during the check period 6826939
(Statement C)
7 Disproportionate Assets - 7558295
(B-A+D-C =DA) 111%
20. The IO also examined certain other
properties, namely, (i) land at Jamshedpur (ii) Honda
City Car (iii) the relationship of A-1 with Arvind Society
and thereafter concluded as hereunder:-
(i) It is established that during the
check period i.e. 01.04.1997 to
05.08.2005 (it may be stated that
initially the check period was fixed
from 01.04.1997 to 31.03.2004.
Subsequently, it was extended upto
05.08.2005, when house search of
A-1, A-2 and A-3 and other places
were made), A-2, A-3, A-4 and other
accused against whom the case has
already been abated, had abetted A-
1 for acquiring the assets in their
names. A-1 abused his official
position being a public servant and
acquired immovable and movable
assets from his ill gotten money
amounting to Rs. 3,13,90,408/- in
his name and in the name of the
appellants and others. The details
have also been given in the
chargesheet. It is as hereunder:-
S. Description Amount
No. (Rs.)
1. (Statement B) 39333166
Assets at the end of the check period
1. Assets at the end of check period of
Swetabh Suman (A-1) (As per Statement B)
Rs. 4294534
2. Assets at the end of check period of Smt.
Gulab Devi (A-2)
(As per statement B)
Rs. 14010824
3. Land at Pondha, Dehradun in the name of
Abhay Kumar Singh and Vinay Kumar
Rs. 1842900
4. Two shops at Dehradun in the name of
Abhay Kumar Singh
Rs. 753400
5. Land at Village Bagral at Dehradun in the
name of Vinay Kumar
Rs. 156200
6. Flat at Noida in the name of
RajenderVikram Singh
Rs. 1025000
7. Hotel Uruvela International in the name of
Arun Kumar Singh
Rs. 17250308
TotalRs. 39,333,166
2. Assets at the beginning of check period 814659
(Statement A)
Swetabh Suman (A-1):- Rs. 181192
Smt. Gulab Devi (A-2):-Rs.633467/-
3. Assets acquired during the check period (B-A) 38518507
4. Expenses during the check period (Statement 2189908
D)
Swetabh Suman (A-1):- Rs. 1182031
Smt. Gulab Devi (A-2):- Rs. 1007877/-
5. Total assets & expenses during the check 40708415
period (B-A+D)
6. Income during the check period (Statement C) 9318007
Swetabh Suman (A-1):- Rs. 2491068/-
Smt. Gulab Devi (A-2):-Rs. 6826939/-
7 Disproportionate Assets (B-A+D-C =DA) 31390408
337%
21. Chargesheet was submitted against the
appellants, and against Vinay Kumar and Rajul
Agarwal. Vinay Kumar and Rajul Agarwal died during
trial, therefore, the case against them stood abated on
03.03.2011 and 18.02.2012, respectively.
The Trial
22. Cognizance was taken on the chargesheet and
the appellants were summoned to answer the
accusations.
23. A-1 was charged on 12.09.2012 for the
offences punishable under Section 13(2) read with
13(1)(e) and Section 11 of the Act.
24. A-2 was charged on 21.11.1012 and A-3 and
A-4 were charged on 11.09.2012 for the offences
punishable under Section 109 IPC read with Section
13(2) read with 13(1)(e) and Section 11 of the Act. The
appellants denied the charge and claimed trial.
25. In order to prove its case, the prosecution
examined as many as 255 witnesses. They may be
categorized under different categories, which are as
follows:-
(A) Witnesses with regard to salary of A-1 :-
PW 68 Rajnish Rastogi, PW 112 Naveen
Kumar, PW 113 Jageshwar Prasad, PW
141 Manoj Kumar, PW 151 G.
Guruswami, PW 158 Rahul Gautam, PW
166 Srikant Prasad Singh, PW 171
Madan Mohan Prasad Sinha, PW 201
Harendra Kumar Verma, PW 214 Shashi
Ranjan and PW 228 Balliram Rajak &
PW 249 Asit Kumar Kanjilal.
(B) Witnesses with regard to account of A-1:-
PW 72 Subodh Chandra, PW 73 Suresh
Chand, PW 77 Satendra Nath Upadhyay,
PW 80 Rajeev Ranjan, PW 111 Narendra
Kumar, PW 120 S.P. Sarkar, PW 203
Samir Kumar Maiti and PW 213 Y.S.
Bisht.
(C) Witnesses with regard to
investment/expenses of A-1:-
PW 1 Harbhajan Maan, PW 3 Naveen
Singh Rawat, PW 5 Bhagwan Singh
Bisht, PW 7 Devendra Pal Singh Chadda,
PW 9 Vijay Kumar, PW 10 Rakesh
Oberoi, PW 15 Vikas Verma, PW 17
Kishan Ram, PW 18 L.B. Pahan, PW 28
D. Ganesh Dandpani, PW 29 Kalin Waaz,
PW 30 A.P. Singh, PW 31 Somnath
Mitra, PW 33 Ashok Kumar Rai, PW 34
Ruchi Girdhar, PW 44 Sushiba Alex, PW
45 Sipriyan Kerketta, PW 47 Smt. Cheri
Namdevi, PW 48 Aarli Shridhar, PW 49
Milind Mahadev Kudkar, PW 51 Cruzin
Goz, PW 52 Pradeep Kumar Kundu, PW
53 Ravindra Swaroop Gupta, PW 126 Raj
Rishi Tiwari, PW 173 Jagbala Singh, PW
197 Shri Kant Vishnukane, PW 198
Subhashis Naag, PW 200 Suresh
Narayan Singh & PW 205 Sanjeev Sinha.
(D) Witnesses with regard to income of A-2:-
PW 35 Rishikesh Tiwari and PW 36 Sri
A.K. Singh
(E) Witnesses with regard to ancestral land
of A-1:-
PW 82 Ramji Singh, PW 110 Manmohan
Prasad, PW 122 Satendra Ram, PW 152
Pradhumna Pandey, PW 154 Ashok
Kumar Pal, PW 192 Kamlesh Singh, PW
193 Dharmraj, PW 195 Shyam Sundar
Prasad, PW 215 Uday Shankar Singh,
PW 240 Chandrashekhar Singh, PW 241
Mohd. Altaf Ansari and PW 244 Sayyed
Obedulla.
(F) Witnesses with regard to accounts of A-
2 :-
PW 11 Abhay Kumar Shukla, PW 79 B.P.
Kushwaha, PW 108 Manoj Kumar Sinha,
PW 109 Pratap Ranjan Prasad, PW 167
Anil Kumar Srivastava, PW 168 Ajeet
Kumar Prasad,PW 204 Amar Kumar, PW
210 Kamakhya Narayan Singh and PW
211 Prema Nand Yadav.
(G) Witnesses with regard to
investment/expenses of A-2:-
PW 38 Suresh Kumar Singh, PW 39
Manoj Kumar Singh, PW 40 Neeru
Raina, PW 41 B.K. Kachru, PW 42 Neeraj
Nagendra, PW 54 Jitendra Singh Tadiyal,
PW 55 Smt. Kanwaljeet Kaur, PW 67
Rajagopalan N.H., PW 90 Sudhir
Chandra Manjhi, PW 96 Ravindra Kumar
Singh, PW 227 Rajendra Prasad Singh
and PW 248 Avtar Singh.
(H) PW 222 Dinesh Kumar Yadav has
stated about salary of A-3.
(I) PW 76 Vijay Nandan Prasad and PW
143 Shravan Chaudhary have stated
about the accounts of A-3.
(J) PW 121 Vijai Kumar Singh and PW 196
Piyush have stated about
investment/expenses of A-3.
(K) PW 97 Anjani Kumar Verma
has stated about salary and
investment/expenses of Smt. Suniti
Suman, who is the wife of A-3.
(L) Witnesses with regard to House No.
169/21, Rajpur Road, Dehradun:-
PW 14 Mohd. Iliyas, PW 32 Yashpal
Singh, PW 37 Rajesh Naithani, PW 46
Smt. Neelima Garg, PW 50 Arun Kumar
Sharma, PW 56 Som Prakash, PW 58
Awdhesh Kumar, PW 62 Arun Kumar,
PW 66 Rajendra Singh, PW 69 Sunil
Goyal, PW 85 Vinay Agarwal, PW 88
Ramesh Batta,PW 98 Avnish Kumar
Deshwal, PW 99 Rakesh Sharma, PW
103 Pravin Gupta, PW 104 Pramod
Kumar, PW 114 R.P. Ishwaran, PW 125
G.P. Singh, PW 128 Shivdev Singh
Marya, PW 132 Santosh Deep, PW 136
Anil Goyal, PW 138 Ashok Kumar Singh,
PW 149 A.K. Chaddha, PW 150 S.P.
Garg, PW 153 Amrit Sain Gupta, PW 187
D.B. Gupta and PW 207 Vivek Kumar.
(M) Witnesses with regard to Noida Plot :-
PW 89 Sri Rajendra Singh, PW 157
Bhanu Pratap Singh, PW 162 Rajendra
Kumar and PW 164 Sanjay Kumar Jain
(he is witness to Noida flat also).
(N) Witnesses with regard to Noida Flat:-
PW 20 Vijay Keerti, PW 43 Vivek
Pokhariyal, PW 70 KambarMurtaza, PW
78 Smt. Shashi Prabha Saxena, PW 86
Anil Jindal, PW 87 Akhil Mahajan, PW
102 Rajiv Mittal, PW 118 Rakesh Kumar
Agarwal, PW 119 Trilok Singh, PW 123
Mahesh Garg, PW 124 Navin Chandra
Kabadwal, PW 129 Surendra Kumar, PW
164 Sanjay Kumar Jain (he is witness to
Noida plot also), PW 174 Deepak Mehta,
PW 175 Dalip Kumar, PW 194 Suresh
Kumar Adya, PW 202 Dharmendra
Kumar Gupta and PW 236 Subhashish
Chakravarti.
(O) Witnesses with regard to IRS, Lucknow
Flat:-
PW 83 Prasenjeet Singh, PW 137
Sandeep Pandey, PW 161 Ram Mohan
Tiwari.
(P) Witnesses with regard to Pondha Land :-
PW 2 Boondi Ram, PW 57 Virendra
Kumar Gupta, PW 59 Vijay Singh Thapli,
PW 64 Dheeraj Singh Negi, PW 74
Prakash Upadhyaya, PW 75 Arjun Singh,
PW 81 Anil Kumar Pandey, PW 91 Kamal
Singh, PW 100 Gaurav Tripathi, PW 106
Mohan Singh, PW 107 S.C. Puri, PW 130
Babu Singh, PW 206 Vinay Gupta,PW
226 Shobhit Mathur and PW 250
Surendra Kumar Rohilla.
(Q) Witnesses with regard to Bagral land:-
PW 22 Surendra Singh, PW 23 Jaswant
Singh, PW 24 Thakur Singh, PW 25
Lekhraj Singh, PW 26 Hukum Singh, PW
27 Vikram Singh, PW 63 Amit Bhatia,
PW 84 Balbeer Singh, PW 144 Roop
Narain Sonkar and PW 231 Charan
Singh.
(R) Witnesses with regard to Hotel Uruvela
International:-
PW 77 Satendra Nath Upadhyaya (he is
also witness to the account of A-1, etc.),
PW 93 Anand Kumar Singh, PW 94
R.N.P. J. Paul, PW 95 Sanjay Kumar, PW
105 Umakant Singh, PW 115 Shadan
Ayubi, PW 159 Kumar Sarvjeet, PW 160
Jai Singh, PW 170 Dinesh Kumar Nigam,
PW 183 Ramkrishna Singh, PW 184
Mohd. Karam Alam, PW 186 Amarnath
Prasad, PW 189 Narendra Kumar, PW
190 Sushil Kumar, PW 191 Baidyanath
Prasad Sharma, PW199 Sanjay Kumar,
PW 216 Shashi Shekhar Chaudhary, PW
219 Dalip Ghosh, PW 229 Nand Kishore
Sharma, PW 230 Rameshwar Sharma,
PW 234 Sitaram Sahu,PW 238 Vijay
Kumar Mandal, PW 239 Akhileshwar
Prasad, PW 242 Mahfooz Alam, PW 245
Gopal Prasad and PW 255 Rajesh Tomar.
(S) Witnesses with regard to shops at Medow
Shopping Plaza Complex:-
PW 65 Kamal Arora, PW 117 Ashish
Thakur, PW 148 Vineet Jain and PW 163
Harish Arora.
(T) Witnesses with regard to USHA plot:-
PW 101 Satish Kumar Shukla and PW
142 S.S. Tomar.
(U) Witnesses with regard to search :-
PW 179 Vinod Kumar, PW 180 K.K. Das,
PW 208 Mithileshwar Prasad, PW 209
S.K. Sharma, PW 212 Anil Kumar, PW
246 Manoj Pangarkar, PW 251 Naresh
Talwar and PW 252 S.S. Kishore.
(V) Witnesses with regard to conduct of A-1:-
PW 4 N.P. Diwan, PW 6 Inder Kumar
Batta, PW 8 Prashant Kochar, PW 60
Suresh, PW 61 P.S. Krishnamurti, PW 71
Mukesh Chand Arora, PW 92 Bharat
Singh Negi, PW 145 Manoj Kumar.
(W) Witnesses with regard to Honda City
Car:-
PW 16 Mukesh Nawani, PW 116 Yadram,
PW 139 Sandeep Sharma, PW 140 Ashok
Kumar, PW 147 Amardeep Singh, PW
185 Rajeev Kumar, PW 217 Gunveen
Singh, PW 220 Anil Mal, PW 233 Sunil
Kumar Upadhyaya and PW 253 Anil
Kumar Singh.
(X) PW 169 Chandra Mohan Prasad and PW
247 Ramadhar Singh have stated about
the Ambassador car.
(Y) PW 12 Narendra Rana has stated about
the Arvind Society.
(Z) PW 21 Rajnish Mohan Singh has stated
about the prosecution sanction.
(AA) Other witnesses:-
PW 13 Amarnath Ahuja, PW 19 Ashok
Kashyap, PW 127 S.K. Sharma, PW 131
Uday Shankar Sharma, PW 133
Veerbhan, PW 134 B.P. Pandey, PW 135
Ram Vilas, PW 146 Vinod Kumar Singh,
PW 155 Chandrashekhar, PW 156
Yogesh Tripathi, PW 165 P. Venugopal
Rao, PW 172 Uday Shankar Tirkha, PW
176 Mohd. Hashmatulla, PW 177
Constable Ranveer Singh, PW 178
Santan Ram, PW 181 Amitabh Rawat,
PW 182 Vinod Kumar Singh, PW 188
P.S. Kochar, PW 218 Kamal Kishore
Singh, PW 221 Rajendra Prasad Singh,
PW 223 Kailash Chand Mishra, PW 224
Shivaji A.B., PW 225 Vijay Kumar Sinha,
PW 232 Anuradha Garg, PW 235 B.K.
Todiwala, PW 237 Jagdish Singh, PW
243 Sridhar Ayyar, PW 250 Surendra
Kumar Rohilla (He is the IO; referred to
earlier also under Pondha land head)
and PW 254 Abhinitam Upadhyaya.
26. The appellants have been examined under
Section 313 of the Code of Criminal Procedure, 1973
(for short, "the Code"). The examination is quite in
detail. According to the appellants, the statement of the
witnesses against them are false.
27. In his examination under Section 313 of the
Code, A-1 has denied that from the search, his
household articles worth Rs. 13,86,060/- was
recovered. According to him, it includes articles
belonging to A-2. According to him, Rs. 1,00,000/-,
which the CBI recovered during search belongs to DW 5
Harinam Singh. A-1 has denied the evidence relating to
benamiproperties and disproportionate assets.
According to him, he had taken action against Awdhesh
Chaudhary, a property dealer in Dehradun, therefore,
credibility of the complaint made by Awdhesh
Chaudhary, in itself, is doubtful. A-1 has stated that
he is a victim of conspiracy, in which the senior officers
of Income Tax Department were also involved.
28. A-2 in her examination under Section 313 of
the Code has stated that she has income from
agriculture, which was deposited in her account in
Bihar. According to her, she acquired properties from
her source of income; she had prepared balance sheets
and submitted it with her ITR, which were accepted by
the Income Tax Department. A-2 has categorically
stated that she has no financial links with A-1. Her
property cannot be said to be benamiproperty of A-1. In
fact, with regard to her income, A-2 has spoken quite
extensively as to how she used to sell agricultural
produce and get the money deposited in the account
through Adati (wholesale dealer).
29. In his examination under Section 313 of the
Code, A-3 has stated that the land for construction of
hotel was purchased by him through cheques. He
admitted his income from salary, as alleged by the
prosecution, but according to him, he had income from
agriculture and hotel also. According to him, he also
took loan for constructing the hotel.
30. In his examination under Section 313 of the
Code, A-4 has stated that he purchased the flat from
Dalip Kumar. According to him, certain shares were
sold by his father to Sanjay Jain and this is how he got
money to purchase the flat. A-4 has also stated that he
did not know as to who was staying in the flat because
it was rented out by a broker, but when raided,
Arunabh Suman was staying in the Flat; he did not
execute any power of attorney; he did not bring any
material for the house constructed by A-1 from PW 69
Sunil Goyal. A-4 has expressed ignorance about the
statements of PW 86 Anil Jindal, PW 87 Akhil Mahajan,
PW 102 Rajeev Mital and PW 123 Mahesh Garg.
31. The examination of the appellants under
Section 313 of the Code is quite extensive. They have
been asked to explain the circumstances appearing
against them in the evidence (despite that on behalf of
A-2, it has been argued that with regard to partition of
HUF, A-2 has not been examined under Section 313 of
the Code, therefore, that part of material produced by
the prosecution cannot be taken into consideration.
This will be considered at an appropriate stage.)
32. In defence, the appellants examined eight
witnesses, namely, DW 1 Alok Kumar Jain, DW 2 Dr.
P.V.K. Prasad, DW 3 Neeta Agarwal, DW 4 Rajesh
Kumar, DW 5 Harinam Singh, DW 6 T.N. Singh, DW 7
Manoj Kumar and DW 8 Sachin Kumar Rathore.
33. DW1 Alok Kumar Jain and DW 6 T.N. Singh
have stated about some documents relating to USHA
property. DW 2 Dr. P.V.K. Prasad has stated about a
communication received by him for conducting an
inquiry with regard to the complaint made by I.K. Batta.
DW 3 Neeta Agarwal is a senior Income Tax Officer. She
has stated about the income tax return of A-2
submitted as HUF. DW4 Rajesh Kumar has proved a
document, Ex. B1. He has stated about a complaint
against Awdhesh Chaudhary. DW 5 Harinam Singh,
DW 7 Manoj Kumar and DW 8 Sachin Kumar Rathore
have been examined with regard to Rs. 1,00,000/-,
which were recovered from the search of house of
A-1 on 05.08.2005. DW 5 Harinam Singh has stated
that he was staying in the house of A-2 for the
treatment of his daughter, who was admitted in a
hospital. He had kept Rs. 1,00,000/- in a room, which
was opened by the CBI. DW 7 Manoj Kumar Singh is a
photographer, who has stated that on 05.08.2005, he
was taking photographs of the search made by CBI.
There this witness met DW 5 Harinam Singh. DW 8
Sachin Kumar Rathore has produced certain
documents with regard to one Nishu, who according to
the prosecution, is the daughter of DW 5 Harinam
Singh.
34. It may be noted, at this stage, that the IO had
also filed an application under Section 3 of the
Ordinance, read with Section 5(6) of the Act for
confiscation of certain properties. The application was
registered as Miscellaneous Case. On 05.08.2015, an
ad interim order of attachment was made on this
application. By the order of the court passed on
07.04.2017, both the case and the Miscellaneous Case
proceeded together.
35. After hearing the parties, by the impugned
judgment and order, the appellants have been convicted
and sentenced, as stated hereinbefore. By the
impugned order, the properties have also been
confiscated under the provisions of the Ordinance.
36. Aggrieved by it, the appellants are before this
Court in appeal.
37. Heard learned counsel for the parties and
perused the record.
ARGUMENTS
On Behalf of A-1
38. Mr. VikramChaudhari, learned Senior
Counsel appearing for A-1 would submit that the
prosecution has utterly failed to prove the charges
against A-1, therefore, the appeal filed by A-1 deserves
to be allowed.
39. Learned Senior Counsel raised the following
points in his arguments:-
(i) The investigation since inception
has been flawed. In case of source
information, preliminary inquiry has
to be conducted, as provided under
Chapter 9 of the CBI Manual. In the
instant case, preliminary inquiry
was not conducted. It vitiates the
entire proceedings.
(ii) The registration of FIR without
verification of the source
information is actuated with malice
both in law as well as fact. It took
five years to file a chargesheet by
enhancing the number of properties
as well as the check period.
In support of his contention,
learned Senior Counsel placed reliance
on the principle of law as laid down in
the case of P. Sirajuddin v. State of
Madras, (1970) 1 SCC 595, Central
Bureau of Investigation v. Ashok Kumar
Aggarwal, (2014) 14 SCC 295 and Vineet
Narain and others v. Union of India and
another, (1998) 1 SCC 226.
In the case of P. Sirajuddin (supra),
the Hon'ble Supreme Court observed
"Before a public servant, whatever be
his status, is publicly charged with
acts of dishonesty which amount to
serious misdemeanour or misconduct
of the type alleged in this case and a
first information is lodged against
him, there must be some suitable
preliminary enquiry into the
allegations by a responsible officer."
In the case of Vineet Narain(supra),
the Hon'ble Supreme Court, inter alia,
observed that the CBI Manual requires
strict compliance. The Hon'ble Supreme
Court observed as hereunder:-
"58. (I)(12) The CBI Manual based on
statutory provisions of CrPC provides essential
guidelines for the CBI's functioning. It is
imperative that CBI adheres scrupulously to the
provisions in the Manual in relation to its
investigative functions, like raids, seizure and
arrests. Any deviation from the established
procedure should be viewed seriously and severe
disciplinary action taken against the officials
concerned."
In the case of Ashok Kumar Agrawal
(supra), the Hon'ble Supreme Court
followed the above principle of law laid
down in the case of Vineet Narain (supra)
and observed as hereunder:-
"24. Thus from the above, it is
evident that the CBI Manual, being based
on statutory provisions of CrPC, provides
for guidelines which require strict
compliance. More so, in view of the fact
that the ratio of the judgment of this
Court in M.M. Rajendran [State of
T.N. v. M.M. Rajendran, (1998) 9 SCC 268
: 1998 SCC (Cri) 1000] has been
incorporated in the CBI Manual, the CBI
Manual itself is the best authority to
determine the issue at hand. The court
has to read the relevant provisions of the
CBI Manual alone and no judgment of
this Court can be a better guiding factor
under such a scenario."
(iii) The burden of proof is upon the
prosecution in both the matters, namely,
(i) where the transaction is benami and
(ii) where the appellant has assets
disproportionate to this known source of
income. Prosecution has to prove its case
beyond reasonable doubt, whereas the
onus of the appellant can be discharged
merely by standard of preponderance of
probabilities.
(vi) A-1 has been charged and convicted not
on the basis of the property recorded in
his name, but based on the properties,
which are recorded in the names of A-2,
A-3, A-4 and others.
(v) The prosecution has to prove beyond
reasonable doubt that the properties,
which the co-accused were possessing,
they were possessing them on behalf of
A-1. But, the prosecution has not been
able to prove it.
(vi) If the properties are in the names of
ostensible owners, A-1 cannot be
connected with it. The IO has admitted
that there is no financial link between A-
1 and other appellants.
(vii) It is the case of the prosecution that the
co-accused aided and abetted A-1. In
such a case, firstly, the prosecution has
to prove that any intentional aid was
given. It is not a case of conspiracy. The
trial court considered the aspect of
conspiracy while convicting the
appellant. It is argued that this approach
is against the law.
In support of this contention,
learned Senior Counsel placed reliance
in the case of P. Nallamal and others v.
State represented by Inspector of Police,
(1999) 6 SCC 559.
In the case of P. Nallamal (supra),
the Hon'ble Supreme Court illustratively
dealt with the provisions of Section 107
IPC and observed as hereunder:-
"24. Shri Shanti Bhushan cited certain
illustrations which, according to us, would
amplify the cases of abetments fitting with
each of the three clauses in Section 107 of
the Penal Code vis-a-vis Section 13(1)(e) of
the PC Act.
The first illustration cited is this:
If A, a close relative of the public
servant tells him of how other public
servants have become more wealthy by
receiving bribes and A persuades the public
servant to do the same in order to become
rich and the public servant acts accordingly.
If it is a proved position there cannot be any
doubt that A has abetted the offence by
instigation.
Next illustration is this:
Four persons including the public
servant decide to raise a bulk amount
through bribery and the remaining persons
prompt the public servant to keep such
money in their names. If this is a proved
position then all the said persons are guilty
of abetment through conspiracy.
The last illustration is this:
If a public servant tells A, a close
friend of his, that he has acquired
considerable wealth through bribery but he
cannot keep them as he has no known
source of income to account, he requests A to
keep the said wealth in A's name,
and A obliges the public servant in doing so.
If it is a proved position A is guilty of
abetment falling under the "Thirdly" clause of
Section 107 of the Penal Code."
(viii) Offence under Section 11 of the Act is
not made out in the instant case. The
charge under Section 11 of the Act has
been framed on the allegations that A-1
purchased costly material goods from
various persons, but he did not pay for
it. The witnesses did not prove it.
Moreover, none of the concerned vendors
had any case/file pending before A-1,
when the purchase of alleged goods were
made.
(x) It is necessary, before invoking Section
11 of the Act, to establish that the public
servant must be in seision of any
proceeding or business to be carried out
towards the part of his official duty from
the concerned person from whom
valuable things, etc. are obtained, but
there is no evidence to that effect. In
support of his submission, learned
Senior Counsel placed reliance on the
principle of law as laid down in the case
of Delhi Administration v. S.N. Khosla
(1971) 1 SCC 872.
In the case of S.N. Khosla (supra),
the Hon'ble Supreme Court observed as
hereunder:-
"6. In our opinion the High Court
was quite right in holding that no offence
had been committed under Section 5(1)(b)
of the Act. It seems to us that there was
consideration for the obtaining of goods
on credit and it cannot be said that an
officer, if he obtains goods on credit, even
if he does not intend to pay, is obtaining a
valuable thing without consideration. The
case may be different if it is proved that
there was an agreement with the trader
that the trader would not demand the
money and the officer would not pay, and
the bill and the reminders sent would be
merely a formality. There is no evidence
to sustain such an inference in this
particular case.
7. Coming to Section 5(1)(d), the
question arises whether the respondent
had obtained any pecuniary advantage.
There is no doubt that the words
"pecuniary advantage" are of wide
amplitude but even so in the context of
Section 5(1)(d) obtaining goods on credit
cannot be held to amount to obtaining
pecuniary advantage. As we have said, if
there is an agreement between the officer
and the trader that the officer is not
expected to pay for the goods then there
is no doubt that this would amount to
obtaining pecuniary advantage, but if
there is no such agreement and the
officer does not pay it cannot be said that
he has obtained any pecuniary
advantage. He does not act in any
manner different from a non-official who
obtains things on credit and then refuses
to pay......."
(x) The trial court had proceeded on the
wrong assumption, when it observed that
first and foremost the source of income
of A-2 was to be examined. The trial
court decided the case on a wholly
erroneous perspective, which had no
relevance to the scope of the case set up
by the CBI.
(xi) The Trial Court misjudged the issue and
erroneously treated the assets of A-2, A-3
and A-4 and others as benami assets of
A-1, whereas the scope of the charges
was only as to whether A-1 siphoned the
money to A-2, A-3, A-4 and other co-
accused.
(xii) One of the ingredients of any benami
assets is the source of money, which
should come from the accused to the
alleged benamidar to create the asset in
question. The onus lies on the
prosecution to prove that the asset in
question is a benami property.
(xiii) The alleged case of benami property does
not stand against A-1. None of the
ingredients of any benami property
stands proved against A-1 at all for the
following reasons:-
(a) The ingredients of any benami
property have not been proved
against A-1.
(b) The IO had admitted that there
has been no financial
connection between A-1 and
other appellants.
(c) The ostensible owners assert
their ownership over their
properties.
(d) All the original documents of
the properties were recovered
from the possession of the
respective owners of those
properties and not from A-1.
(e) A-1 never took any financial
help/benefit from the alleged
benami properties.
(f) All the alleged benami
properties were duly reflected
in the income tax returns of
the respective owners of the
said properties.
(g) Source of co-accused has
nothing to do with the A-1.
In support of his contention, learned
Senior Counsel for A-1 placed reliance on the
principle of law as laid down in the case of
Vasant Rao Guhe v. State of Madhya Pradesh,
2017 (14) SCC 442; K. Govardhan v. State of
Andhra Pradesh 2001 (3) RCR (Criminal) 334.
In the case of Vasant Rao Guhe
(supra), the Hon'ble Supreme Court discussed
the law with regard to proof of benami
property and in paragraphs 18 and 22
observed as hereunder:-
"18. Apart therefrom, both the
courts below indulged in voluntary
exercises to quantify the pay of the
appellant for the periods excluded by the
prosecution as well as his agricultural
income and that too premised on
presumptions with regard to his possible
expenditures/investments and his share
in the agricultural receipts, having regard
to the nature of the charge cast on the
appellant and the inflexible burden on the
prosecution to unfailingly prove all the
ingredients constituting that same, there
could have been no room whatsoever of
any inference or speculation by the courts
below. A person cannot be subjected to a
criminal prosecution either for a charge
which is amorphous and transitory and
further on evidence that is conjectural or
hypothetical. The appellant in the
determinations before the courts below
has been subjected to a trial in which
both the charges and evidence on aspects
with vital bearing thereon lacked
certitude, precision and unambiguity.
22. In view of the materials on
record and the state of law as above, we
are thus of the considered opinion that
the prosecution has failed to prove
beyond all reasonable doubt the charge of
criminal misconduct under Section
13(1)(e) of the Act and punishable under
Section 13(2) thereof against the
appellant. He is thus entitled to the
benefit of doubt. The prosecution to
succeed in a criminal trial has to pitch its
case beyond all reasonable doubt and
lodge it in the realm of "must be true"
category and not rest contended by
leaving it in the domain of "may be true".
We are thus left unpersuaded by the
charge laid by the prosecution and the
adjudications undertaken by the courts
below. The conviction and sentence, thus
is set aside. The appeal is allowed."
In the case of K. Goverdhan (supra),
the Hon'ble Andhra Pradesh High Court, inter
alia, observed that "It is pertinent to
mention here that even assuming that the
ostensible owners in question do not have
any known sources of income this in itself
cannot be a conclusive circumstance for
holding that the property held by them was
benami on behalf of accused officer".
(xiv) If there is absence of any source of
income of the ostensible owners, it
cannot implicate A-1. The link has to be
established, which is missing in the
instant case.
Learned Senior Counsel for A-1 also
placed reliance on the principle of law as
laid down in the case of Jaydayal Poddar
(Deceased) through L.Rs. and another v.
Mst. Bibi Hazra and others, (1974) 1
SCC 3, to argue that to establish benami
transaction, the prosecution has to prove
that :- (i) the property is in the name of
others (ii) funds were provided by the
appellant to the ostensible owners (iii)
the appellant manages the properties
and (iv) the appellant invested in the
property.
In the case of Jaydayal Poddar
(supra), the Hon'ble Supreme Court
observed as hereunder:-
6. It is well settled that the burden of
"
proving that a particular sale is benami and
the apparent purchaser is not the real owner,
always rests on the person asserting it to be
so. This burden has to be strictly discharged
by adducing legal evidence of a definite
character which would either directly prove
the fact of benami or establish circumstances
unerringly and reasonably raising an
inference of that fact. The essence of
a benami is the intention of the party or
parties concerned; and not unoften, such
intention is shrouded in a thick veil which
cannot be easily pierced through. But such
difficulties do not relieve the person asserting
the transaction to be benami of any part of
the serious onus that rests on him; nor
justify the acceptance of mere conjectures or
surmises, as a substitute for proof. The
reason is that a deed is a solemn document
prepared and executed after considerable
deliberation, and the person expressly shown
as the purchaser or transferee in the deed,
starts with the initial presumption in his
favour that the apparent state of affairs is the
real state of affairs. Though the question,
whether a particular sale is benami or not, is
largely one of fact, and for determining this
question, no absolute formulae or acid test,
uniformly applicable in all situations, can be
laid down; yet in weighing the probabilities
and for gathering the relevant indicia, the
Courts are usually guided by these
circumstances: (1) the source from which the
purchase money came; (2) the nature and
possession of the property, after the
purchase; (3) motive, if any, for giving the
transaction a benami colour; (4) the position
of the parties and the relationship, it any,
between the claimant and the
alleged benamidar; (5) the custody of the
title-deeds after the sale and (6) the conduct
of the parties concerned in dealing with the
property after the sale."
Learned Senior Counsel also
referred to the judgment in the case of
MangathaiAmmal (Died) through LRs
and Others v. Rajeswari and others,
2019 SCC OnLine SC 717.In the case of
Mangathai Ammal (supra), the Hon'ble
Supreme Court followed the principle of
law as laid down in the case of Jaydayal
Poddar (supra) and held as hereunder:-
"28. While considering the issue
involved in the present appeal viz. whether
the transactions/Sale Deeds in favour of
defendant no. 1 can be said to be benami
transactions or not, the law on the benami
transactions is required to be considered and
few decisions of this Court on the aforesaid
are required to be referred to.
29. In the case
of JaydayalPoddar (Supra) it is specifically
observed and held by this Court that the
burden of proving that a particular sale is
benami and the apparent purchaser is not
the real owner, always rests on the person
asserting it to be sold. It is further observed
that this burden has to be strictly discharged
by adducing legal evidence of a definite
character which would either directly prove
the fact of the benami transaction or
establish circumstances unerringly and
reasonably raising an interference of that
fact. ...................................."
30. In the case of Thakur Bhim Singh (Supra)
this Court in paragraph 18 observed and held as
under:
"18. The principle governing the
determination of the question whether
a transfer is a benami transaction or
not may be summed up thus: (1) the
burden of showing that a transfer is a
benami transaction lies on the person
who asserts that it is such a
transaction; (2) it is proved that the
purchase money came from a person
other than the person in whose favour
the property is transferred, the
purchase is prima facie assumed to be
for the benefit of the person who
supplied the purchase money, unless
there is evidence to the contrary; (3)
the true character of the transaction is
governed by the intention of the person
who has contributed the purchase
money and (4) the question as to what
his intention was has to be decided on
the basis of the surrounding
circumstances, the relationship of the
parties, the motives governing their
action in bringing about the
transaction and their subsequent
conduct, etc."
31. In the case of P. Leelavathi (Supra) this
Court held as under:
"9.2 In Binapani Paul
case (Supra), this Court again had an
occasion to consider the nature of
benami transactions. After considering
a catena of decisions of this Court on
the point, this Court in that judgment
observed and held that the source of
money had never been the sole
consideration. It is merely one of the
relevant considerations but not
determinative in character. This Court
ultimately concluded after considering
its earlier judgment in the case
of Valliammal v. Subramaniam (2004) 7
SCC 233 that while considering
whether a particular transaction is
benami in nature, the following six
circumstances can be taken as a guide:
"(1) the source from which the
purchase money came;
(2) the nature and possession of
the property, after the purchase;
(3) motive, if any, for giving the
transaction a benamicolour;
(4) the position of the parties and
the relationship, if any, between the
claimant and the alleged benamidar;
(5) the custody of the title deeds
after the sale; and
(6) the conduct of the parties
concerned in dealing with the property
after the sale. (JaydayalPoddar v. Bibi
Hazra (supra), SCC p. 7, para6)"
(xv) In the instant case, nothing has been
proved. There has been no financial link
between A-1 and other appellants.
(xvi) A-2 is a rich lady. She purchased
properties from her own source. She
revealed her source to the IO, who did
not take them into consideration.
(xvii) A-3 has also submitted his income tax
returns and balance sheet revealing the
income, but it was not considered by the
IO. A-3 had source of income and he
explained it by preponderance of
probabilities.
(xviii) A-2 and A-3 discharged their onus. Post
sale, possession of the properties
purchased by A-2 and A-3 was with
them. There is no conduct as well, which
could link A-1 with other co-accused.
(xix)A-4 sold his shares and purchased the
property at Noida. A-1 in no manner
whatsoever is related to it. It is
prejudiced investigation, which prevailed
during trial also to make the court
believe that offences were committed.
(xx) The quality of evidence is too poor to
prove the charges. In fact, irrelevant
material has been collected to prove the
charges.
(xxi) The search carried out on 05.08.2005
turned out to be an utter failure.
In support of his contentions, learned
Senior Counsel for A-1 also referred to the
principle of law as laid down in the cases of
Krishnanand Agnihotri v. State of Madhya
Pradesh, (1977) 1 SCC 816; State of
Maharashtra v. Wasudeo Ramchandran
Kaidalwar, (1981) 3 SCC 199; Mohan Singh
and another v. State of M.P., (1999) 2 SCC
428; State of Rajasthan v. Raja Ram, (2003) 8
SCC 180; Sunil Rai v. Union Territory,
Chandigarh, (2011) 12 SCC 258; Vikramjit
Singh @ Vicky v. State of Punjab, (2006) 12
SCC 306, V.K. Puri Vs. CBI, (2007) 6 SCC 91,
Sh. Vishwa Vibhuti v. CBI, 2012 SCC OnLine
Del 3452, Ramesh Baburao Devaskar and
Others v. State of Maharashtra (2007) 13 SCC
501, M Krishna Reddy v. State DSP,
Hyderabad (1992) 4 SCC 45, State of
Karnataka Vs. J. Jayalalitha, (2017) 6 SCC
263, Malay Kumar Ganguly v. Dr. Sukumar
Mukharjee and Others, (2009) 9 SCC 221,
Thulia Kali v. The State of Tamil Nadu, (1972)
3 SCC 393, Sujit Biswas v. State of Assam,
(2013) 12 SCC 406, Kishor Chand v.
Himachal Pradesh (1991) 1 SCC 286, DSP,
Chennai Vs. K. Inbasagaran, (2006) 1 SCC
420 and Commissioner of Income Tax Vs.
Smt. Nilofer I. Singh, (2009)309 ITR 233.
40. In the case of KrishnanandAgnihotri (supra),
the Hon'ble Supreme Court followed the principle of law
as laid down in the case of JaydayalPoddar (supra) and
observed that "It is not enough merely to show
circumstances which might create suspicion,
because the court cannot decide on the basis of
suspicion. It has to act on legal grounds established
by evidence".
41. In the case of WasudeoRamchandraKaidalwar
(supra), the Hon'ble Supreme Court discussed the
expression "burden of proof" and in para 13 observed
as hereunder :-
"13. .........The expression "burden of proof" has
two distinct meanings (1) the legal burden i.e.
the burden of establishing the guilt, and (2) the
evidential burden i.e. the burden of leading
evidence. In a criminal trial, the burden of
proving everything essential to establish the
charge against the accused lies upon the
prosecution, and that burden never shifts.
Notwithstanding the general rule that the
burden of proof lies exclusively upon the
prosecution, in the case of certain offences, the
burden of proving a particular fact in issue may
be laid by law upon the accused. The burden
resting on the accused in such cases is,
however, not so onerous as that which lies on
the prosecution and is discharged by proof of a
balance of probabilities. The ingredients of the
offence of criminal misconduct under Section
5(2) read with Section 5(1)(e) are the possession
of pecuniary resources or property
disproportionate to the known sources of
income for which the public servant cannot
satisfactorily account. To substantiate the
charge, the prosecution must prove the
following facts before it can bring a case under
Section 5(1)(e), namely, (1) it must establish
that the accused is a public servant, (2) the
nature and extent of the pecuniary resources or
property which were found in his possession,
(3) it must be proved as to what were his
known sources of income i.e. known to the
prosecution, and (4) it must prove, quite
objectively, that such resources or property
found in possession of the accused were
disproportionate to his known sources of
income. Once these four ingredients are
established, the offence of criminal misconduct
under Section 5(1)(e) is complete, unless the
accused is able to account for such resources
or property. The burden then shifts to the
accused to satisfactorily account for his
possession of disproportionate assets. The
extent and nature of burden of proof resting
upon the public servant to be found in
possession of disproportionate assets under
Section 5(1)(e) cannot be higher than the test
laid by the Court in Jhingan case [AIR 1966 SC
1762 : (1966) 3 SCR 736 : 1966 Cri LJ 1357]
i.e. to establish his case by a preponderance of
probability. That test was laid down by the
court following the dictum of Viscount Sankey,
L.C., in Woolmington v. Director of Public
Prosecutions [1935 AC 462] . The High Court
has placed an impossible burden on the
prosecution to disprove all possible sources of
income which were within the special
knowledge of the accused. As laid down
in Swamy case [AIR 1960 SC 7 : (1960) 1 SCR
461 : 1960 Cri LJ 131] , the prosecution
cannot, in the very nature of things, be
expected to know the affairs of a public servant
found in possession of resources or property
disproportionate to his known sources of
income i.e. his salary. Those will be matters
specially within the knowledge of the public
servant within the meaning of Section 106 of
the Evidence Act, 1872. Section 106 reads:
"When any fact is especially within
the knowledge of any person, the burden
of proving that fact is upon him."
In this connection, the phrase "burden of
proof" is clearly used in the secondary sense,
namely, the duty of introducing evidence. The
nature and extent of the burden cast on the
accused is well-settled. The accused is not
bound to prove his innocence beyond all
reasonable doubt. All that he need do is to
bring out a preponderance of probability."
42. In the case of Mohan Singh (supra), the
Hon'ble Supreme Court discussed the duty of the court
to elicit truth and observed as hereunder:-
"11. ...........Mere variance of the
prosecution story with the medical evidence, in
all cases, should not lead to the conclusion,
inevitably to reject the prosecution story.
Efforts should be made to find the truth, this is
the very object for which courts are created. To
search it out, the courts have been removing
the chaff from the grain. It has to disperse the
suspicious cloud and dust out the smear of
dust as all these things clog the very truth. So
long as chaff, cloud and dust remain, the
criminals are clothed with this protective layer
to receive the benefit of doubt. So it is a solemn
duty of the courts, not to merely conclude and
leave the case the moment suspicions are
created. It is the onerous duty of the court,
within permissible limit, to find out the truth. It
means on one hand, no innocent man should
be punished but on the other hand, to see no
person committing an offence should get scot-
free. If in spite of such effort, suspicion is not
dissolved, it remains writ at large, benefit of
doubt has to be credited to the accused."
43. In the case of Raja Ram (supra), the Hon'ble
Supreme Court observed that "The golden thread
which runs through the web of administration of
justice in criminal cases is that if two views are
possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other to
his innocence, the view which is favourable to the
accused should be adopted." In the case of Sunil Rai
(supra), the Hon'ble Supreme Court, inter alia, observed
that "on the materials on record, there may be some
suspicion against the accused, but as is often said,
suspicion, however strong, cannot take place of
proof". In the case of Vikramjit Singh (supra), the
Hon'ble Supreme Court held that "suspicion, however,
grave may be, cannot be a substitute for proof".In
the case of Ramesh BaburaoDevaskar (supra), the
Hon'ble Supreme Court observed "proof of motive by
itself may not be a ground to hold the accused
guilty". In the case of Kishore Chand (supra), the
Hon'ble Supreme Court discussed the provision with
regard to extra-judicial confession and observed "the
court has to look into the surrounding
circumstances and to find whether the extra-
judicial confession is not inspired by any improper
or collateral consideration or circumvention of the
law suggesting that it may not be true one". In the
case of K. Inbasagaran (supra), the Hon'ble Supreme
Court observed that "the initial burden was on the
prosecution to establish whether the accused has
acquired the property disproportionate to his
known source of income or not. But at the same
time, it has been held in State of M.P. v. Awadh
Kishore Gupta [(2004) 1 SCC 691 : 2004 SCC (Cri)
353] that the accused has to account satisfactorily
for the money received in his hand and satisfy the
court that his explanation was worthy of
acceptance."
44. In the case of V.K. Puri (supra) also, the
Hon'ble Supreme Court held that once the ingredients
of the offence under Section 13(1) (e) of the Act are
proved and established by the prosecution, the burden
to proof would shift on the accused to show that the
prosecution case is not correct.
45. In the case of VishwaVibhuti (supra), an order
framing charge was challenged before the High Court.
The Hon'ble Delhi High Court referring to the various
case laws on the point observed as to what is to be
considered at the time of framing of charge and held "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".
46. In the case of M. Krishna Reddy (supra),
certain income tax returns were not considered by the
trial court on the ground that the persons who
submitted those income tax returns had little
experience during that period. In paragraph 13 of the
judgment, the Hon'ble Supreme Court observed as
hereunder:-
"13. The trial court has brushed aside this
piece of evidence on the ground that the
daughter and son-in-law, Dr RavindraReddi
had only little experience during that period;
that they had submitted their income tax
returns for a consolidated period of three years
in 1982 and therefore the case of the appellant
that he got a loan of Rs 20,000 from Dr
RavindraReddi is not acceptable. This
reasoning is based on mere conjunctures or
surmise. As repeatedly pointed out earlier, the
raid was in 1983 and so, there could not be
any conceivable reason even to entertain any
suspicion or surmise."
47. Reference is made to the case of J. Jayalalitha
(supra) to argue that the facts in the case of J.
Jayalalitha (supra) were quite different because in that
case ITR was submitted post lodging of the FIR.
Therefore, they were doubted. It is argued that even
ITRs were not totally discarded in the case of J.
Jayalalitha (supra). Learned counsel appearing for the
appellants would argue that the circumstances in the
case of J. Jayalalitha (supra) were different because in
that case there were witnesses to depose before the
court that they deposited cash in the banks under the
direction of the accused. It is argued that in the instant
case, there is no financial link between A-1 and other
appellants and even there is no such evidence.
48. Factual narration may not be identical in two
cases, but the principles of law are general, which are
applicable under the given facts. With regard to ITR, the
Hon'ble Supreme Court in the case of J. Jayalalitha
(supra) has observed that the income shown in the ITR
by themselves cannot establish that such income had
been from some lawful source. In para 196 of the
judgment, the Hon'ble Supreme Court observed as
hereunder:-
"196. This Court ruled that the fact that the
accused, other than the two Ministers, had
been assessed to income tax and had paid
income tax could not have been relied upon to
discharge the accused persons in view of the
allegation made by the prosecution that there
was no separate income to amass such huge
property. It was underlined that the property
in the name of the income tax assessee
itself cannot be a ground to hold that it
actually belongs to such an assessee and
that if this proposition was accepted, it
would lead to disastrous consequences. This
Court reflected that in such an eventuality
it will give opportunities to the corrupt
public servant to amass property in the
name of known person, pay income tax on
their behalf and then be out from the
mischief of law."
(emphasis supplied)
49. In the case of Malay Kumar Ganguli (supra),
the Hon'ble Supreme Court discussed as to how a
document may be admissible in evidence. In para 37,
the Hon'ble Supreme Court observed as hereunder:-
"37. It is true that ordinarily if a party to
an action does not object to a document
being taken on record and the same is
marked as an exhibit, he is estopped and
precluded from questioning the
admissibility thereof at a later stage. It is,
however, trite that a document becomes
inadmissible in evidence unless the
author thereof is examined; the contents
thereof cannot be held to have been
proved unless he is examined and
subjected to cross-examination in a court
of law. The document which is otherwise
inadmissible cannot be taken in evidence
only because no objection to the
admissibility thereof was taken."
50. In the case of Thulia Kali (supra), the Hon'ble
Supreme Court, inter alia, observed "First information
report in a criminal case is an extremely vital and
valuable piece of evidence for the purpose of
corroborating the oral evidence adduced at the
trial".In the case of Sujit Biswas (supra), the Hon'ble
Supreme Court discussed the provision of Section 313
of the Code and observed "The circumstances which
are not put to the accused in his examination under
Section 313 CrPC, cannot be used against him and
must be excluded from consideration".
51. In the case of Smt. Nilofer I. Singh (supra), the
issue was with regard to determination of fair market
value for the purposes of Section 55-A of the Income
Tax Act, 1961. The Hon'ble Delhi High Court observed
that "For the purposes of computing capital gains in
such a case as the one before us, there is no
necessity for computing the fair market value and,
therefore, the Assessing Officer could not have
referred the matter to the Valuation Officers". There
was another issue with regard to bad debts. On this
point, the Hon'ble Delhi High Court, observed that
"section 36(1)(vii) of the said Act clearly stipulates
that the said deduction is allowed provided the bad
debt is written off as irrecoverable in the accounts
of the assessee for the concerned previous year.
This is, however, subject to the provision of sub-
section (2) of section 36 of the Act."
52. Learned Senior Counsel for A-1 also argued
with regard to each property. Those submissions would
be considered while dealing with the individual
properties.
On Behalf of A-2
53. Learned Counsel for A-2, Mr. Rajeev Duggal,
would submit that A-2 cannot be connected in any
manner in her financial activities with A-1. A-2 cannot
be prosecuted and convicted. Learned Counsel raised
the following points in his arguments:-
(i) There is no trail of money between
A-1 and A-2. A-2 is the Manager of
Hindu Undivided Family (HUF). She
has huge agricultural properties. If
any amount was deposited in her
account in Bihar, A-1 cannot be
linked with it.
(ii) There is no entry in the name of A-1
in the record of A-2. Income and
assets of A-2 are more than A-1. It
is reflected in the FIR itself. The "A",
"B", "C", "D" statements cannot be
prepared of A-2. It has prejudiced
her interest.
(iii) The income of A-2 of whole of her
life should have been taken into
consideration.
(iv) In order to establish a benami
transaction, it has to be shown that
the purchase money came from
some third person and not from the
ostensible owner.
(v) The properties held by A-2 are not
benami.
54. Learned Counsel for A-2 has also argued with
regard to the properties registered in the name of A-2.
Those submissions would be referred to at an
appropriate place.
On Behalf of A-3
55. Learned Senior Counsel Mr. N. Hariharan
argued on behalf of A-3. Most of the arguments are
overlapping to the arguments as advanced on behalf of
A-1. Leaned Senior Counsel would submit as follows:-
(i) The prosecution had to prove that
A-3 held any property on behalf of
A-1. This burden was on the
prosecution, which the prosecution
utterly failed to discharge. The
burden has to be discharged by
legal evidence and not by
conjectures and surmises.
(ii) In the case of Jaydayal Poddar
(supra), the circumstantial evidence
has been elaborated, but those
circumstances have not been
established in the instant case. The
source of purchase money, as a
circumstances, in view of Jaydayal
Poddar (supra) refers to source of A-
1 and not that of ostensible owners.
The prosecution has to prove that
the ostensible owners purchased
the property from the source
deriving from A-1.
(iii) Howsoever strong suspicion may be,
suspicion and surmises cannot be
made the basis for conviction.
(iv) The charge against A-3 is abetment
by aiding, which falls in 3rd clause
of Section 107 IPC.Learned Senior
Counsel also referred to the
principle of law as laid down in the
case of P. Nallamal (supra), which
has already been referred to, in the
earlier part of this judgment.
(v) The trial court in para 1030 and
1031 wrongly took into notice the
aspects of conspiracy. Conspiracy is
not a charge against A-3.
56. Learned Senior Counsel also argued with
regard to the individual property in the name of A-3.
Those arguments would be referred to at an appropriate
place, when the property will be discussed.
On behalf of A-4
57. Learned Senior Counsel Mr. Vijay Bahadur
Singh Negi argued on behalf of A-4. It is argued that A-
4 is not named in the FIR. A power of attorney was
recovered from the house where Arunabh Suman was
the tenant. That is how A-4 was made an accused.
Learned Senior Counsel would submit that no case is
made out against A-4. He would raise the following
arguments also in support of his contention:-
(i) A-4 purchased the property from its
lawful owner, who has proved so.
(ii) Arunabh Suman was never
examined by the CBI. He was
neither made accused nor witness.
The document, which the CBI
alleged to be a power of attorney is,
in fact, not a power of attorney. A-4
is owner of the Noida flat where
Arunabh Suman was a tenant,
therefore, a document was executed
by A-4 in favour of Arunabh Suman
so that he may act on behalf of A-4
in the matters of society.
(iii) The alleged power of attorney does
not bear any date. A-4 has never
transferred the property to anyone.
(iv) A-4 had source of income to
purchase the Noida flat. His father
had purchased shares of SJ
Capitals. A-4 received draft in
connection with those shares, which
he used to purchase the Noida flat.
(v) Prosecution has not been able to
prove that the money of A-1 was
used to purchase the Noida flat.
There is no financial link.
58. Learned Senior Counsel also referred to the
evidence on this aspect. It will be discussed at an
appropriate place in the judgment.
On Behalf of the Prosecution
59. Learned Special Counsel for the CBI would
submit that the offences under the Act are special kind
of offences. The prosecution has been able to prove the
charges against the appellants and the court below
righty convicted and sentenced the appellants. The
prosecution witnesses have proved the case. There is no
infirmity in the impugned judgment and order. Learned
Special Counsel for the CBI raised the following points
also in his arguments:-
(i) Preliminary inquiry is not mandatory
in such cases when the information is
accurate. Reference has been made to
the judgment in the case of State of
Telangana v. Managipet alias
Managipet Sarveshwar Reddy, (2019)
19 SCC 87.
In the case of Managipet (supra), the
Hon'ble Supreme Court observed
"the preliminary inquiry warranted
in Lalita Kumara [Lalita
Kumari v. State of U.P., (2014) 2
SCC 1 : (2014) 1 SCC (Cri) 524] is not
required to be mandatorily
conducted in all corruption cases. It
has been reiterated by this Court in
multiple instances that the type of
preliminary inquiry to be conducted
will depend on the facts and
circumstances of each case. There
are no fixed parameters on which
such inquiry can be said to be
conducted. Therefore, any formal
and informal collection of
information disclosing a cognizable
offence to the satisfaction of the
person recording the FIR is
sufficient"
(ii) In the instant case the information
was accurate. CBI Manual only guides
CBI, it is not the law.
(iii) It is a complex case. The public
servant and private individuals are
being prosecuted. It is settled law that
private persons may also be
prosecuted under Section 109 IPC.
(iv) The check period may be fixed by the
IO. In the instant case, check period
was extended till the date when the
search was carried out on 05.08.2005.
Many other properties also came to
light during investigation. It is a
complex case. IO had to examine
witnesses, documents collected,
forensic evidence was also obtained.
Transactions relating to properties
took place at various places, therefore,
it took time to file the chargesheet.
Even, it is argued that there is no time
limit within which chargehseet is
required to be submitted.
(v) In the case like the instant one, the
word "prove" has different
connotation because such offences are
committed with great caution. The
natural presumption, natural events
and human conduct are to be taken
into consideration by the court to
raise permissible presumptions, as
held by the Hon'ble Supreme Court in
the case of K. Ponnuswamy v. State of
T.N. by Inspector of Police, Directorate
of Vigilance and Anti-Corruption,
South Range, Trichy, 2001 (6) SCC
674. Reference has been made to para
27 of the judgment, which is as
hereunder:-
"27. In support of his submission Mr
Rao relied upon the authority of this Court in
the case of Krishnanand v. State of
M.P. [(1977) 1 SCC 816 : 1977 SCC (Cri) 190]
In this case this Court has held as follows:
(SCC pp. 830-31, para 26)
"It is well settled that the burden of
showing that a particular transaction is
benami and the appellant owner is not the
real owner always rests on the person
asserting it to be so and this burden has to
be strictly discharged by adducing legal
evidence of a definite character which would
either directly prove the fact of benami or
establish circumstances unerringly and
reasonably raising an inference of that fact.
The essence of benami is the intention of the
parties and not unoften, such intention is
shrouded in a thick veil which cannot be
easily pierced through. But such difficulties
do not relieve the person asserting the
transaction to be benami of the serious onus
that rests on him, nor justify the acceptance
of mere conjectures or surmises as a
substitute for proof. It is not enough merely
to show circumstances which might create
suspicion, because the court cannot decide
on the basis of suspicion. It has to act on
legal grounds established by evidence."
There can be no dispute with the legal
proposition. However, let us see what is
meant by "proved". Section 3 of the Evidence
Act defines "proved" as follows:
"3. 'Proved'.--A fact is said to be
proved when, after considering the
matters before it, the court either
believes it to exist, or considers its
existence so probable that a prudent
man ought, under the circumstances
of the particular case, to act upon the
supposition that it exists."
Further, Section 114 of the Evidence
Act reads as follows:
"114. Court may presume
existence of certain facts.--The
court may presume the existence of
any fact which it thinks likely to have
happened, regard being had to the
common course of natural events,
human conduct and public and private
business, in their relation to the facts
of the particular case."
Thus the fact is said to be proved when
after considering the matters before it, the
court believes it to exist, or considers its
existence so probable that a prudent man
ought, under the circumstances of the
particular case, to act upon the supposition
that it exists. In coming to its belief the court
may presume existence of any fact which it
thinks likely to have happened having regard
to the natural course of event, human
conduct and public and private business, in
relation to the facts of each case."
(vi) In the case of J. Jayalalitha (supra), the
Hon'ble Supreme Court relied on the
principle of law as laid down in the case
of K. Ponnuswamy (supra). While
appreciating evidence in such cases, the
attending circumstances are also to be
seen.
(vii) A woman cannot be "Karta"of HUF
because she could not have been a
coparcener prior to 2005. Reliance has
been placed to the judgment in the case
of Commissioner of Income Tax v. Seth
Govindram Sugar Mills, AIR 1966 SC 24.
(viii) A- 2 had no income as claimed by her.
(ix) The principle of law as laid down in the
case of Jaydayal Poddar(supra) was in a
civil case. In a criminal case, the
principles as laid down in Jaydayal
Poddar's case (supra) will not apply.
Jaydayal Poddar's case (supra) has
further been explained in the case of K.
Ponnuswamy (supra).
(x) The appellants were charged under
Section 109 IPC, which punishes for
abetment as defined under Section 107
IPC. The appellants have not been
charged for one part of abetment in
isolation. It is an offence, which includes
"intention". "Intention" is a state of mind
and it can be collected to by overt act
alone.
(xi) Even the property, which A-2 claims to
be HUF had already been divided
amongst the family members. Share of A-
2 was not more than about nine acres.
(xii) Even if there was any income from the
agricultural property, it was for all the
coparceners.If the other coparceners had
given their shares to A-2, in that
eventuality it could have been counted as
her income independently and not an
income arising out from HUF. But, A-2
did not declare her income as such, in
any of the income tax returns.
(xiii) A-2 misled the IO with regard to
agricultural income of Rs. 59,10,300.00
but A-2 cannot claim benefit of it. A-2
was not a coparcener in HUF. HUF had
already been partitioned. A-2 gave an
explanation in her examination under
Section 313 of Code that she was
"Karta", but it is not correct. A-2 has
cross-examined witnesses with regard to
her agricultural income, therefore,
admission of the IO that A-2 had
agricultural income of Rs. 59,10,300.00
has no relevance. A-2 had to prove this
income, which she failed.
(xiv) The trial court rightly disbelieved the
HUF concept.
60. Learned Special Counsel for CBI has also
submitted with regard to individual properties. Such
submissions would be discussed at an appropriate
place in the judgment.
DISCUSSION
61. In the instant case, A-1 has been a public
servant. He has been charged for the offences
punishable under section 13 (2) read with 13(e) of the
Act. Broadly, it is the allegations against A-1 that he, by
abusing his official position, as public servant, acquired
assets in the name of A-2, A-3, A-4 and others.He was
found in possession of disproportionate assets. As
stated, A-1 has also been charged for the offences
punishable under Section 11 of the Act. The private
individuals have been charged for the offences along
with Section 109 IPC. A private individual may very well
be prosecuted for such offences as held by the Hon'ble
Supreme Court in the case of P. Nallamal (supra), which
is as hereunder:-
"10. Thus, clause (b) of the sub-section
encompasses the offences committed in
conspiracy with others or by abetment of
"any of the offences" punishable under
the PC Act. If such conspiracy or
abetment of "any of the offences"
punishable under the PC Act can be tried
"only" by the Special Judge, it is
inconceivable that the abettor or the
conspirator can be delinked from the
delinquent public servant for the purpose
of trial of the offence. If a non-public
servant is also a member of the criminal
conspiracy for a public servant to commit
any offence under the PC Act, or if such
non-public servant has abetted any of the
offences which the public servant
commits, such non-public servant is also
liable to be tried along with the public
servant before the Court of a Special
Judge having jurisdiction in the matter."
62. A few propositions of law have been argued on
behalf of the appellants. It is argued that the
prosecution has to prove its case beyond reasonable
doubt and once the prosecution succeeds in doing so,
the appellants may discharge the onus merely by the
standard of preponderance of probabilities.
63. In a criminal case, it is a basic principle that
it is the prosecution, which has to prove its case beyond
reasonable doubt. The words "beyond reasonable
doubt" have been interpreted umpteen times by the
Hon'ble Supreme Court. Even in the case of
"presumption of guilt", it is settled law that first and
foremost, the prosecution has to prove its case beyond
reasonable doubt and in such cases, an accused may
secure his acquittal if he may create doubts by the
standard of preponderance of probabilities.
64. In the case of circumstantial evidence,
generally based on some facts, some inferences are
drawn. To make a chain to prove a case beyond
reasonable doubt, the words "proved", "disproved" or
"not proved" have been defined in the Indian Evidence
Act, 1872 ("the Evidence Act"). In the case of Vijayee
Singh and others v. State of U.P., (1990) 3 SCC 190, the
Hon'ble Supreme Court interpreted these words and the
circumstances or conditions of probabilities or
improbalities in the following words:-
"28. It can be argued that the
concept of 'reasonable doubt' is vague in
nature and the standard of 'burden of
proof' contemplated under Section 105
should be somewhat specific, therefore, it
is difficult to reconcile both. But the
general principles of criminal
jurisprudence, namely, that the
prosecution has to prove its case beyond
reasonable doubt and that the accused is
entitled to the benefit of a reasonable
doubt, are to be borne in mind. The
'reasonable doubt' is one which occurs to
a prudent and reasonable man. Section 3
while explaining the meaning of the words
"proved", "disproved" and "not proved"
lays down the standard of proof, namely,
about the existence or non-existence of
the circumstances from the point of view
of a prudent man. The section is so
worded as to provide for two conditions of
mind, first, that in which a man feels
absolutely certain of a fact, in other
words, "believe it to exist" and secondly in
which though he may not feel absolutely
certain of a fact, he thinks it so extremely
probable that a prudent man would
under the circumstances act on the
assumption of its existence. The Act while
adopting the requirement of the prudent
man as an appropriate concrete standard
by which to measure proof at the same
time contemplates of giving full effect to
be given to circumstances or condition of
probability or improbability. It is this
degree of certainty to be arrived where the
circumstances before a fact can be said to
be proved. A fact is said to be disproved
when the court believes that it does not
exist or considers its non-existence so
probable in the view of a prudent man
and now we come to the third stage where
in the view of a prudent man the fact is
not proved i.e. neither proved nor
disproved. It is this doubt which occurs to
a reasonable man, has legal recognition
in the field of criminal disputes. It is
something different from moral conviction
and it is also different from a suspicion. It
is the result of a process of keen
examination of the entire material on
record by 'a prudent man'."
65. When interference from basic facts is not
balanced orguided, it may lead to conjectures and
surmises or speculations. In the case of Maharashtra
State Board of Secondary and Higher Secondary
Education v. K.S. Gandhi and others, (1991) 2 SCC
716, the Hon'ble Supreme Court observed " In our
considered view inference from the evidence and
circumstances must be carefully distinguished
from conjectures or speculation. The mind is
prone to take pleasure to adapt circumstances to
one another and even in straining them a little to
force them to form parts of one connected whole.
There must be evidence direct or circumstantial
to deduce necessary inferences in proof of the
facts in issue. There can be no inferences unless
there are objective facts, direct or circumstantial
from which to infer the other fact which it is
sought to establish. In some cases the other facts
can be inferred, as much as is practical, as if they
had been actually observed. In other cases the
inferences do not go beyond reasonable
probability. If there are no positive proved facts,
oral, documentary or circumstantial from which
the inferences can be made the method of
inference fails and what is left is mere
speculation or conjecture."
66. Suspicion, howsoever strong cannot
substitute for proof. Mere conjectures or suspicions
cannot substitute the legal proof. In the case of
Ashish Batham v. State of M.P., (2002) 7 SCC 317,
the Hon'ble Supreme Court observed "Courts
dealing with criminal cases at least should
constantly remember that there is a long mental
distance between "may be true" and "must be
true" and this basic and golden rule only helps to
maintain the vital distinction between
"conjectures" and "sure conclusions" to be
arrived at on the touchstone of a dispassionate
judicial scrutiny based upon a complete and
comprehensive appreciation of all features of the
case as well as quality and credibility of the
evidence brought on record".
67. In the case of G. Parswanath v. State of
Karnataka, (2010) 8 SCC 593, the Hon'ble Supreme
Court observed "circumstantial evidence is
evidence of relevant facts from which, one can,
by process of intuitive reasoning, infer about the
existence of facts in issue or factum probandum.
In dealing with circumstantial evidence there is
always a danger that conjecture or suspicion
lingering on mind may take place of proof.
Suspicion, however, strong cannot be allowed to
take place of proof and, therefore, the court has
to be watchful and ensure that conjectures and
suspicions do not take place of legal proof". In
paragraph 23 and 24 of the judgment, in the case of
G. Parswanath (supra), the Hon'ble Supreme Court
further interpreted the law as hereunder:-
"23. In cases where evidence is of a
circumstantial nature, the circumstances
from which the conclusion of guilt is to be
drawn should, in the first instance, be
fully established. Each fact sought to be
relied upon must be proved individually.
However, in applying this principle a
distinction must be made between facts
called primary or basic on the one hand
and inference of facts to be drawn from
them on the other. In regard to proof of
primary facts, the court has to judge the
evidence and decide whether that
evidence proves a particular fact and if
that fact is proved, the question whether
that fact leads to an inference of guilt of
the accused person should be considered.
In dealing with this aspect of the problem,
the doctrine of benefit of doubt applies.
Although there should not be any missing
links in the case, yet it is not essential
that each of the links must appear on the
surface of the evidence adduced and
some of these links may have to be
inferred from the proved facts. In drawing
these inferences, the court must have
regard to the common course of natural
events and to human conduct and their
relations to the facts of the particular
case. The court thereafter has to consider
the effect of proved facts.
24. In deciding the sufficiency of the
circumstantial evidence for the purpose of
conviction, the court has to consider the
total cumulative effect of all the proved
facts, each one of which reinforces the
conclusion of guilt and if the combined
effect of all these facts taken together is
conclusive in establishing the guilt of the
accused, the conviction would be justified
even though it may be that one or more of
these facts by itself or themselves is/are
not decisive. The facts established should
be consistent only with the hypothesis of
the guilt of the accused and should
exclude every hypothesis except the one
sought to be proved. But this does not
mean that before the prosecution can
succeed in a case resting upon
circumstantial evidence alone, it must
exclude each and every hypothesis
suggested by the accused, howsoever,
extravagant and fanciful it might be.
There must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with
the innocence of the accused and must
show that in all human probability the
act must have been done by the accused,
where various links in chain are in
themselves complete, then the false plea
or false defence may be called into aid
only to lend assurance to the court."
68. In the case of Vijay Kumar Arora v. State
(Government of NCT of Delhi), (2010) 2 SCC 353 also
the Hon'ble Supreme Court cautioned the courts
that "the court has to be watchful and ensure that
conjectures and suspicions do not take place of
legal proof. However, it is no derogation of
evidence to say that it is circumstantial. Human
agency may be faulty in expressing picturisation
of actual incident, but the circumstances cannot
fail. Therefore, many a times it is aptly said that
"men may tell lies, but circumstances do not".
69. It is settled law that in the case of
circumstantial evidence based on some foundational
facts, the court draws inferences. When such
inferences may be called legal inferences and when it
falls in the realm of conjectures and surmises, the
line may at times be blurred or dim. But in view of
the settled law, it is bright and distinct.
70. The Evidence Act guides the court in
appreciating the evidence. The word "proved" has
been defined under Section 3 of the Evidence Act.
The Evidence Act also permits the court to presume
existence of certain facts, under Section 114 of the
Evidence Act. These presumptions are definitely legal
presumptions. They relate to common course of
natural events, human conduct and public and
private business in their relations to facts of a
particular case. This sphere of "proof",
"presumptions", "inferences" have been discussed by
the Hon'ble Supreme Court in the case of K.
Ponnuswamy (supra).
71. In view of the provisions of the Evidence
Act and the law as laid down in the case of K.
Ponnuswamy (supra), the natural presumptions
considering the common course of natural events
and human conduct has a big role to play to make
inferences by the court. It helps the court to believe
existence or non-existence of any fact or to consider
its existence so probable that a prudent man ought
to act upon the situation that it exists. In the case of
J. Jayalalitha (supra), the Hon'ble Supreme Court
referred to the judgment in the case of K.
Ponnuswamy (supra) and observed as hereunder:-
"234. In K. Ponnuswamy v. State of
T.N. [K. Ponnuswamy v. State of T.N.,
(2001) 6 SCC 674 : 2001 SCC (Cri) 1209]
, this Court referred to the definition of
the word "proved" in Section 3 of the
Evidence Act, 1872 and also Section 114
thereof. While noting that in terms
thereof, a fact is said to be proved when
after considering the matters before it,
the Court either believes it to exist or
considers its existence so probable that a
prudent man, under the circumstances of
the particular case, ought to act upon
this supposition that it exists. It reflected
also on the permissible presumption
envisaged under the statute, with regard
to the existence of any fact which a court
is likely to think to have happened,
regard being had to the common course
of natural events, human conduct and
public and private business in relation to
the facts of a particular case.
235. The significance of this
decision is that while evaluating the
evidence on record, the attendant facts
and circumstances need be taken note of
as well, to determine as to whether the
materials available, having regard to the
common course of natural events and
human conduct do logically prove the
point in issue."
72. The principle of law as laid down with
regard to appreciation of evidence, particularly in
cases of circumstantial evidence will definitely guide
this Court in the present case also to make
inferences and avoid reaching the arena of
conjectures and surmises.
Source of Income of Public Servant or
Ostensible Owner
73. On behalf of the appellants, it has been
argued that the source of income of the ostensible
owners need not be examined at all. The court below,
it is argued, proceeded on wholly erroneous
perspective when it proceeded to examine the source
of income of the non-public servants. It is argued
that the source of purchase money as a
circumstance, in view of JaydayalPoddar case
(supra), refers to source of public servant and not
that of ostensible owners. It has also been argued
that there is no direct financial link between A-1 and
other appellants and it in itself fails the prosecution
case.
74. Reference has been made to the
judgment in the case of JaydayalPoddar (supra) to
argue that the circumstances as given in para 6 of
the judgment are not established in the instant case.
At the cost of repetition, the Court would like to
reproduce as to what was held by the Hon'ble
Supreme Court in the case of JaydayalPoddar
(supra) on this aspect. The Hon'ble Supreme Court
observed that "Though the question, whether a
particular sale is benami or not, is largely one of
fact, and for determining this question, no
absolute formulae or acid test, uniformly
applicable in all situations, can be laid down; yet
in weighing the probabilities and for gathering
the relevant indicia, the Courts are usually
guided by these circumstances: (1) the source
from which the purchase money came; (2) the
nature and possession of the property, after the
purchase; (3) motive, if any, for giving the
transaction a benami colour; (4) the position of
the parties and the relationship, it any, between
the claimant and the alleged benamidar; (5) the
custody of the title-deeds after the sale and (6)
the conduct of the parties concerned in dealing
with the property after the sale."
75. The Hon'ble Supreme Court further
observed that the above indicia are not exhaustive.
Nevertheless, the source, whence the purchase
money came is by far the most important test for
determining whether the sale standing in the name
of one person is for the benefit of another.
76. It is true that the court below
investigated the source of money of the ostensible
owners. This has been termed as erroneous
approach by the learned counsel appearing for the
appellants. It has been so argued at the strength
that the source of public servant has to be seen to
connect the property in the name of ostensible
owner.
77. On behalf of the appellants, reference
has been made to the judgment in the case of K.
Govardhan (supra). In para 21 of its judgment, the
Hon'ble Andhra Pradesh High Court has observed (a
part of it has also been quoted hereinbefore) "Mere
fact that the ostensible owner had no source of
income in itself would not lead to any inference
that the property in question was purchased with
the income of a particular person. The absence of
any source of income to the ostensible owner
would merely indicate that the property might
have been acquired with the income flowing from
some one else. As to who that some one else is a
matter of evidence and proof. The circumstance
cannot lead to an inference that the property in
question was acquired with the income from the
accused".
78. Even in the case of K. Goverdhan (supra),
the Hon'ble Andhra Pradesh High Court did not rule
out the investigation with regard to the source of
income of the ostensible owner. What the Hon'ble
Andhra Pradesh High Court has observed is that no
source of income with the ostensible owner in itself
is not sufficient to lead any inference that the
property in question was purchased with the income
of some other person. This proposition of law may
not be doubted. The ostensible owner did not have
source of income to purchase a particular property,
in itself, cannot connect the property with some
other person. There should be some other evidence,
attending factors or circumstances, which may
connect a public servant with a non public servant
in cases when the property has been purchased in
the name of a non-public servant, who did not have
source of income to acquire such property.
79. Subsequent to it, in the case of M.
Kishan v. State of Andhra Pradesh, 2005 (1) APLJ
171, the Hon'ble Andhra Pradesh High Court has
held that if the circumstances lead to an inference
that the ostensible owner has no source of income to
purchase such property and if they lead to an
inference that the circumstances placed by the
prosecution would establish that the money of the
government employee was utilized to purchase the
property, it is sufficient to establish the guilt of such
government employee. In the case of M. Kishan
(supra), the Hon'ble Andhra Pradesh High Court also
referred to the judgment in the case of K.
Goverdhan(supra).
80. It cannot be said that the source of
income with the non-public servants cannot be seen.
This argument does not merit any acceptance for the
various reasons, namely, in the case of
JaydayalPoddar (supra), the first circumstance which
is referred in para 6 of the judgment is "the source
from which the purchase money came". The word
used is "source". Now, if a property is in the name of
some non public servant, which at the first instance
reflects that the source of income must have been
derived from such non public servant. In such case,
firstly, it has to be analyzed whether such non public
servant had any source of income to acquire such
property. In case it is found that such non public
servant had enough source of income to acquire
such property, there remains less to investigate
further. But, if it is found that such non public
servant did not have enough source of income to
acquire such property, then the matter needs further
investigation and if it is connected with the public
servant, such public servant may be held guilty for
holding property in the name of others.
81. In fact, in the case of JaydayalPoddar
(supra), in paragraph 7, the Hon'ble Supreme Court
has categorically held that the source "whence" the
purchase money came is most important test. Not
only this, in para 8 of the judgment, in the case of
JaydayalPoddar (supra), the Hon'ble Supreme Court
discussed the source of income with the ostensible
owner to record a conclusion with regard to
benamitransactions.
82. On behalf of the CBI, it is argued that
the principle of law as laid down in the case of
JaydayalPoddar (supra) are not applicable in the
instant case because the principles were laid down
in a civil case. This argument has less force. The
principles have been laid down in the case of
JaydayalPoddar (supra) with regard to
benamitransactions as to how it can be concluded
that a person holds property in his name, which, in
fact, was acquired by some other person. The
principles of law may be made applicable to all
proceedings, be it civil or criminal.
83. In the case of K. Ponnuswamy (supra),
some properties were acquired in the name of a
student. The Hon'ble Supreme Court investigated the
source of income of such student to record a
conclusion as to whether such student held that
property on behalf of a public servant. In paragraph
23, last lines, the Hon'ble Supreme Court observed
"Thus the daughter of the Appellant (i.e. Accused
No. 3) was merely a student and had no source of
income had purchased properties, paid for the
stamp duty and other costs. When this fact was
put to her, Accused No. 3, she admitted that the
purchases were made in her name. But she failed
to explain the source of income from which the
properties were purchased".
84. If this proposition is accepted that in the
absence of direct financial links, the source of
income of ostensible owner is not to be examined, it
would defeat the very purpose of enacting the Act. If
a public servant by any means avoids any direct
financial link and acquires property in the name of
others, in such cases, if the source of income of
ostensible owner is not examined, the matter cannot
be investigated any further. Therefore, in such cases,
where the public servant is charged with
disproportionate assets along with non public
servant and it is alleged that the properties were
acquired in the name of non public servant, the
court must examine the source of purchase money.
It means as to how the ostensible owner acquired the
money to purchase the property. The court below did
not adopt any erroneous approach. The court below
while examining the source of income of ostensible
owner did proceed in accordance with law.
Income Tax Returns & Trial under the Act
85. In the instant case, reference has been
made to income tax returns submitted by some of
the non public servants and it is so argued that
since the income shown in the respective income tax
returns have already been accepted by the income
tax department, it would be sufficient proof of the
source of income. This argument has less merit for
acceptance.
86. This is a criminal trial. The income as
shown in the income tax return has different
connotations for the purposes of collecting taxes and
for no other purpose. In the criminal proceeding
under the Act, the public servant has to account for
the property. If a non public servant is also
prosecuted with the aid of Section 109 IPC along
with the public servant, such non public servant has
also to account for the properties held by him in the
criminal trial.
87. On behalf of the appellants, reference
has been made to the judgment in the case of M.
Krishna Reddy (supra). In that case, ITRs were not
considered on the ground that the person who
submitted the ITRs had little experience. The Hon'ble
Supreme Court, under the facts and circumstances
of the case held that such finding was based on mere
conjectures and surmises. It may be noted that in
the case of J. Jayalalitha (supra) also relying on the
principles as laid down in the case of M. Krishna
Reddy (supra), it was argued (paras 70, 71 and 92)
that ITR, being public documents, are admissible in
evidence. But, as stated, the Hon'ble Supreme Court
in the case of J. Jayalalitha (supra) held that in a
trial under the Act, an accused has to account for
the assets independently. The Hon'ble Supreme
Court has categorically held on this aspect as
hereunder:-
"190. The decision is to convey that
though the IT returns and the orders passed in
the IT proceedings in the instant case recorded
the income of the accused concerned as
disclosed in their returns, in view of the charge
levelled against them, such returns and the
orders in the IT proceedings would not by
themselves establish that such income had
been from lawful source as contemplated in the
Explanation to Section 13(1)(e) of the PC Act,
1988 and that independent evidence would be
required to account for the same.
191. Though considerable exchanges had
been made in course of the arguments,
centringaround Section 43 of the Evidence Act,
1872, we are of the comprehension that those
need not be expatiated in details. Suffice it to
state that even assuming that the income tax
returns, the proceedings in connection
therewith and the decisions rendered therein
are relevant and admissible in evidence as well,
nothing as such, turns thereon definitively as
those do not furnish any guarantee or
authentication of the lawfulness of the
source(s) of income, the pith of the charge
levelled against the respondents. It is the plea
of the defence that the income tax returns and
orders, while proved by the accused persons
had not been objected to by the prosecution
and further it (prosecution) as well had called
in evidence the income tax returns/orders and
thus, it cannot object to the admissibility of the
records produced by the defence. To reiterate,
even if such returns and orders are admissible,
the probative value would depend on the
nature of the information furnished, the
findings recorded in the orders and having a
bearing on the charge levelled. In any view of
the matter, however, such returns and orders
would not ipso facto either conclusively prove
or disprove the charge and can at best be
pieces of evidence which have to be evaluated
along with the other materials on record.
Noticeably, none of the respondents has been
examined on oath in the case in hand. Further,
the income tax returns relied upon by the
defence as well as the orders passed in the
proceedings pertaining thereto have been
filed/passed after the charge-sheet had been
submitted. Significantly, there is a charge of
conspiracy and abetment against the accused
persons. In the overall perspective therefore
neither the income tax returns nor the orders
passed in the proceedings relatable thereto,
either definitively attest the lawfulness of the
sources of income of the accused persons or
are of any avail to them to satisfactorily
account the disproportionateness of their
pecuniary resources and properties as
mandated by Section 13(1)(e) of the Act."
88. To re-iterate, the Hon'ble Supreme Court in
para 196 of the judgment in the case of J. Jayalalitha
(supra) has observed that "It was underlined that the
property in the name of the income tax assessee
itself cannot be a ground to hold that it actually
belongs to such an assessee and that if this
proposition was accepted, it would lead to
disastrous consequences".
Investigation without Preliminary Inquiry
89. An argument has been advanced that the
investigation in the instant case has been faulty since
its inception because no preliminary inquiry was
conducted, as provided under Chapter 9 of the CBI
Manual; chargesheet has been filed after 5 years while
expanding the properties and the check period.
90. On behalf of the CBI, it is argued that
preliminary inquiry is not necessary in the cases when
the information is accurate.It is also argued on behalf
of the CBI that it was a huge matter which took time in
completion of the investigation.
91. Chapter 9 of the CBI Manual prescribes for
preliminary inquiry and its para 9.1, inter alia, provides
"when information available is adequate to indicate
commission of cognizable offence or its discrete
verification leads to similar conclusion, a regular
case must be registered instead of preliminary
inquiry. It is, therefore, necessary that the SP must
carefully analyze material available at the time of
evaluating report submitted by the verifying officer
so that the registration of PE is not resorted to
where a regular case can be registered".
92. In fact, Chapter 9 of the CBI Manual does not
mandatorily require for a preliminary inquiry. It gives
discretion to the authorities either to register a regular
case or to proceed with the preliminary inquiry. As
quoted hereinbefore, in case of accurate information, a
regular case straightway may be registered.
93. On behalf of the CBI, reference has been
made of a judgment in the case of Managipet (supra), in
which the Hon'ble Supreme Court has categorically
held that preliminary inquiry is not warranted in all
corruption cases. Therefore, it cannot be said that the
investigation was faulty in the instant case. The FIR is
categorical with fine details. The CBI authorities
proceeded to register a regular case, which they would
have registered even in view of CBI Manual. Under the
Code, they were not mandatorily required to register
preliminary inquiry.
Abetment by aiding or abetment simpliciter.
94. On behalf of the appellants, it is also argued
that the instant is a case of abetment by intentional aid
but the court below considered the aspect of conspiracy
while convicting the appellants and this is a gross
mistake in law. In this context, the principles of law as
laid down in the case of P. Nallamal (supra) has been
referred to. In fact, on behalf of the A-3, reference has
been made to para 1030 and 1031 of the impugned
judgment. In para 1030 and 1031 of its judgment, the
court below concluded that "it cannot be said that in
the case of abetment by aiding, the circumstantial
evidence is not important". The court also observed
that "criminal conspiracy is also a part of abetment".
These propositions may not be doubted. But what is
required to be examined is as to whether it is a case of
abetment by "intentional aid" alone as argued on
behalf of the appellants.
95. Section 107 IPC defines "abetment". It is as
hereunder:-
"107. Abetment of a thing.--A
person abets the doing of a thing, who--
First.--Instigates any person to do
that thing; or
Secondly.--Engages with one or
more other person or persons in any
conspiracy for the doing of that thing, if
an act or illegal omission takes place in
pursuance of that conspiracy, and in
order to the doing of that thing; or
Thirdly.--Intentionally aids, by any
act or illegal omission, the doing of that
thing.
Explanation 1.--A person who, by
wilful misrepresentation, or by wilful
concealment of a material fact which he is
bound to disclose, voluntarily causes or
procures, or attempts to cause or
procure, a thing to be done, is said to
instigate the doing of that thing. "
96. A bare perusal of the above definition reveals
that abetment may be by any of the modes as given
under Section 107 IPC. It may be by "instigation",
"conspiracy" or "intentional aid".
97. In the case of P. Nallamal (supra), the Hon'ble
Supreme Court has quoted the illustrations with regard
to each of these three modes of abetment.
98. In the case of State of Andhra Pradesh v.
KandimallaSubbaiah and others, AIR 1961 SC 1241,
the Hon'ble Supreme Court observed that "there may
be an element of abetment in a conspiracy..."
99. In the case of ParmathaNathTalukdar and
another v. SarojRanjan Sarkar, AIR 1962 SC 876, the
Hon'ble Supreme Court referred to the distinction
between the "abetment" under second clause of Section
107 IPC and "criminal conspiracy" and observed "An
act or illegal omission must take place in pursuance
of the conspiracy and in order to the doing of the
thing conspired for; in the latter offence the mere
agreement is enough, if the agreement is to commit
an offence."
100. The question is as to whether in the instant
case, the appellants have been distinctly charged for
abetment by "intentional aid" alone. On behalf of the
appellants, arguments were advanced at the time of
framing of charge. On 02.07.2012, the court below
found that there are sufficient grounds to frame charge
against the appellants and this order records that the
non public servants may be charged with the help of
Section 109 IPC. This order does not speak that the non
public servants were to be charged for "intentional aid"
of the offences under the Act. All the non public servant
appellants have been charged for "intentionally aided
and abetted the public servant". The charge does not
speak that the non public servant "intentionally aided
and thereby abetted". In fact, the non public servant
appellants have beencharged for abetment of the
offences under the Act and the abetment includes all,
namely, "instigation", "conspiracy" and "intentional
aid".
DISPROPORTIONATE ASSETS OF A-1.
101. A-1 has been charged for having in
possession of disproportionate assets to the extent of
Rs.3,13,90,408/-. It includes disproportionate assets of
Rs.28,04,305/- in the name of A-1 and the other
properties held by non public servants for A-1.
102. The Court first proceeds to individually
examine the assets in the name of A-1.
103. In the earlier part of this judgment, this
Court has reproduced the averments made in the
chargesheet with regard to the statements A, B, C and
D of A-1 and disproportionate assets held by him in his
name.
104. Under certain heads A-1 has objections.
According to A-1, he did not have any assets
disproportionate to his known source of income tax.
The calculation made by CBI for evaluating the assets
of A-1 has been questioned.
105. The following chart reveals the statements
of "A", "B", "C" and "D" with computation of
disproportionate asset as per the court below, the CBI
and as per A-1.
COMPUTATION OF DISPROPORTIONATE ASSETS OF SWETABH SUMAN (A-1)
STATEMENT 'A'(ASSETS AT THE BEGINNING OF CHECK PERIOD 01.04.1997)
SR. DESCRIPTION AMOUNT AS PER AMOUNT AS TRIAL COURT
NO. CBI CALCULATION PER A-1 CALCULATION
1. Investments 37,600 37,600 37,600
2. PPF Account 83,704 83,704 83,704
3. Bank Accounts 13,802 2,35,332 13,802
4. Purchase of Revolver 46,086 46,086 46,086
5. 1,81,192 4,02,722 1,81,192
STATEMENT 'B'(ASSETS AT THE END OF CHECK PERIOD 05.08.2005)
SR. DESCRIPTION AMOUNT AS PER AMOUNT AS PER TRIAL COURT
NO. CBI A-1 CALCULATION
CALCULATION
1. PPF Account 10,27,619 1027619 1027619
2. Bank Accounts 2,29,331 2,29,331 2,29,331
3. Investment in tax relief 7,68,500 7,68,500 7,68,500
bonds and shares
4. Revolver 46,086 46,086 46,086
5. Household Goods 13,86,060 0 13,11,060
including Car 1992
make
6. Cash in hand 1,00,000 25000 1,00,000
7. Gold 7,36,938 0 7,36,938
Ornaments/Jewellery
42,94,534 20,96,536 42,19,535
Statement 'C' (INCOME DURING THE CHECK PERIOD)
SR. DESCRIPTION AMOUNT AS PER AMOUNT AS PER A-1 TRIAL COURT
NO. CBI CALCULATION CALCULATION
1. Salary 18,79,115 18,79,115 18,79,115
2. LIC Survival 20,000 40,000 20,000
Benefits recd
3. Interest and 2,27,035 6,49,193 5,80,001
Dividends
recd from
various
investments
4. Interest from 3,64,918 3,64,918 3,64,918
Bank and PPF
24,91,068 29,33,226 28,44,034
STATEMENT 'D'(EXPENDITURE DURING THE CHECK PERIOD)
SR. DESCRIPTION AMOUNT AS PER AMOUNT AS PER TRIAL COURT
NO. CBI A-1 CALCULATION
CALCULATION
1. Kitchen expenses 6,59,429 3,30,000 6,59,429
2. Insurance Policy 2,49,176 2,49,176 2,49,176
premium
3. Transport Charges 30,000 0 30,000
4. Ammunition purchases 7,891 7,891 7,891
5. Donation 56,100 56,100 56,100
6. School Fee of son 39,015 39,015 39,015
7. Accommodation charges 3,762 3,762 3,762
8. Repair of Car 10,000 0 10,000
BR17C0021
9. Travel Charges 72,000 0 10,000
10. Mess and Food Charges 4,798 0 4,798
11,82,031 6,85,944 11,32,171
COMPUTATION OF DISPROPORTIONATE ASSETS OF A-1
SR. DESCRIPTION AMOUNT AS PER AMOUNT AS PER TRIAL
NO. CBI CALCULATION A-1 COURT
CALCULATI
ON
1. ASSETS AT THE 42,94,534 20,96,536 42,19,535
END OF CHECK
PERIOD (Statement
B)
2. ASSETS AT THE 1,81,192 4,02,722 1,81,192
BEGINNING OF
CHECK PERIOD
(Statement A)
3. ASSETS ACQUIRED 41,13,342 16,93,814 40,38,343
DURING THE
CHECK PERIOD (B-
A)
4. EXPENSES DURING 11,82,031 6,85,944 11,32,171
THE CHECK
PERIOD (Statement
D)
5. TOTAL ASSETS AND 52,95,373 23,79,758 51,70,514
EXPENSES DURING
THE CHECK
PERIOD (B-A+D)
6. INCOME DURING 24,91,068 29,33,226 2,844,034
THE CHECK
PERIOD
(STATEMENT C)
7. DISPROPORTIONAT 28,04,305 -5,53,468 23,26,480
E ASSETS (B-A+D-C)
Statement "A" of A-1
106. There are four heads in the statement A of
A-1. Objections have been raised with regard to item at
Sr. no. 3 bank accounts. In the chargesheet, CBI has
recorded this amount as Rs.13,802/-. In the FIR, the
likely savings of A-1 has been recorded as Rs.4,02,722/-
.
107. On behalf of A-1, there are following
objections;
(1) A-1 had received salary Rs. 5,36,311/-
till 01.04.1997.
(2) The savings could have been assessed
by deducting 1/3 of total salary which
comes around Rs. 4 Lakhs.This should
have been taken as the savings of A-1 in
the banks accounts at Sr. No. 3 of the
statement A.
(3) The IOwrongly reduced this amount to
Rs.13802/-.
(4) In fact, in the written arguments on
behalf of A-1, it is also recorded that the
FIR is an extremely valuable document and
valuable piece of evidence.In support of it,
reference has been made to the judgment
in the case of Thulia Kali (supra).
(5) The IO never tried to ascertain as to
what was total balance in the account no.
01190035817 and he has admitted it in his
evidence.
(6) The IO also did not ascertain as to what
was the actual amount balance in account
no. 01190006913 as on 01.04.1997.
108. The Court below discussed these
arguments in quite detail, took into consideration the
documents filed by CBI on these points and held that,
in fact, on 01.04.1997, the savings of A-1 was Rs.
13802/-.
109. PW72 Subodh Chandra has stated about
account no. 01190035817 of A-1. He proved the
statements. According to him, the transactions of this
account prior to 01.04.2004 was not available in the
bank. This witness has proved the document to that
effect.
110. PW 203 Samir Kumar Maiti has also stated
about this account and has also stated that there was
no record of this account in the bank for the period
prior to 01.04.2004.
111. PW 80 Rajiv Ranjan has stated about
account no. 1088.
112. The investigating officer has admitted that
he took into consideration the amount recorded as
balance in the passbook of the account maintained by
A-1. The investigating officer did not reveal as to when
was the last entry made in those passbook. But, if
there was any other amount balance on 01.04.1997 in
the account of A-1, A-1 had always been free to prove
it before the court, which he did not.
113. The balance cannot be calculated on the
basis of salary received by A-1. On behalf of A-1, it is
also argued that A-1 had received more than 5 lakh
salary prior to 01.04.1997, therefore, after deducting
1/3 of it, approximate Rs. 4,00,000/- could have been
shown as saving of A-1 on that date. This argument
does not have any weight behind it. Having received
salary is one thing and making savings is quite
distinct. The investigating officer calculated amount
under this head as per available record. It has not
been disproved. As stated, if there was any variation in
the amount balance in the account of A-1 on
01.04.1997, he could have shown and proved it, which
he did not. Therefore, the finding recorded on this
point by the court below is as per law, based on
evidence.
Statement "B" of A-1
114. In the statement B of A-1, items at Sr. no.
5, 6 and 7, there are objections on behalf of A-1. These
items are;
(i) household goods including a car
(ii) Cash in hand
(iii) Gold ornaments
115. According to the prosecution, these articles were
recovered when the house of A-1 was raided at
Jamshedpur on 05.08.2005. There are multiple
objections to it on behalf of A-1. They are as hereunder;
(i) Search was conducted in the absence
of A-1 or his family members. A-1 was
sick.
(ii) The house where search was
conducted at Jamshedpur was taken
on rent by A-2. The house did not
belong to A-1.
(iii) PW248 Avtaar Singh has categorically
stated that the house was taken on
rent by A-2 and not by A-1.
(iv) PW248 Avtar Singh is a neutral
witness and he is reliable.
(v) The inventory which was allegedly
prepared on 5.8.2005 is not in
accordance with law.
(vi) The CBI circular requires that the
value of the articles received has to be
estimated based on the year of
acquisition. In the instant case, year
of acquisition of most of the articles
have not been recorded.
(vii) PW 246 Manoj Pangarkar has stated
that the value of the articles seized
was recorded on the basis of the
statements given by independent
witnesses but PW179 Vinod Kumar
and PW180 K.K. Das, who were
members of the search team did not
support the statement of PW 246
Manoj Pangarkar with regard to the
value of the articles seized at the time
of search. According to them, they did
not reveal either year of acquisition or
the value of the articles seized.
(viii) The household goods belong to A-2
and not A-1.
(ix) The car which was allegedly recovered
at the time of search did not belong to
A-1. It was purchased prior to the
check period and belongs to PW 247
Ramadhar Singh. PW247 Ramadhar
Singh had given the car for a short
period to A-1. A-1 does not become its
owner.
(x) PW 177 Ranveer Singh, PW 132
Santosh Deep did not support the
prosecution case.
(xi) The inventory reflects gross non
application of mind.
116. On the other hand, on behalf of the CBI, it
is argued that the inventory was prepared at the time
of search of the house belonging to A-1 in
Jamshedpur. The value of the articles has been
recorded as was told to the raiding team.
Household Goods
117. PW246 Manoj Pangarkar conducted search
in the house of A-1 on 05.08.2005, (although, it is
disputed on behalf of A-1 on the ground that the
house did not belong to A-1). According to PW246
Manoj Pangarkar when they reached in the house,
they found A-1, his wife and son alongwith other staff
in the house. Search was conducted initially in the
presence of A-1 and his family members.
Subsequently, two lawyers also joined the search but
at about 03:00 p.m., A-1 complained of sickness. A
doctor examined and found his blood pressure high,
therefore, he was sent to hospital. His family members
joined him. The lawyers remained there till 11:00 in
the night, but, then they also left. The search
continued till 10:30 next morning. Next morning, at
about 09:00 a.m., the wife of A-1 returned to the
house. She was handed over the jewellery and Rs.
25000/- out of Rs.100000/- which was recovered
during the search. This witness proved inventory Ex.A-
423 as well as the jewellery valuation recorded Ex.A-
545 and other documents. He also proved other
documents including original registration of an
ambassador car.
118. It is true that during the entire search,
neither A-1 nor his family members remained present.
But, then CBI did not conduct search in the absence of
A-1. CBI was permitted to conduct search in the
morning. It is at about 03:00 p.m. when A-1 was
shifted to the hospital. His family members could have
continued with the search but they also left. Most
importantly, according to the search witnesses, A-2
was not present in the house at all. The search cannot
be termed as in violation to rules in the absence of A-1
because the circumstances compelled A-1 to be shifted
and willingly the other family members of A-1 did not
join the search.
119. Ex.A-423 is the inventory prepared during
search. PW 179 Vinod Kumar and PW 180 K.K. Das
were also members of search team. They have also
proved various documents and have spoken about the
search. Both these witnesses have not stated about
the value of the articles seized. PW246 Manoj
Pangarkar was questioned about the value recorded in
the inventory, particularly, item number no. 49 and
85. At item number 49, there are 73 sweaters and
their value is assessed as Rs. 30,000/-. But, how
could it be said to be unreasonable? Similarly at item
no. 85, in the inventory 37 sarees, 45 blouse and 60
petticoats are recorded with a value of Rs.55,000/-.
How is it unreasonable? A suggestion was given to
PW246 Manoj Pangarkar that a synthetic saree costs
Rs. 150-450 also to which this witness expressed
ignorance. The articles belong to A-1, who was a senior
officer at the taxation department. A-1 could have
produced receipts or other evidence to prove otherwise.
120. It is true that in the inventory Ex.A-423,
the year of acquisition has been recorded up till item
no. 17 but not thereafter. But, it per se does not vitiate
the inventory and the price mentioned therein. The
arguments raised on these points does not merit any
acceptance. The court below has rightly accepted this
inventory.
121. It is also argued on behalf of A-1 that the
articles received during search did not belong to A-1
instead they were articles of A-2.
122. Appreciation of evidence cannot be done in
isolation. Even direct evidence has to be appreciated in
a given context and under facts and circumstances of
each case. When cases like instant one are to be
examined, the appreciation of evidence heavily
depends on the attending factors. A-1, as stated, at the
relevant time was a senior officer at the taxation
department. According to A-1, he did not take the
house on rent either in Dehradun or Jamshedpur. A-1
was posted in Dehradun earlier. There also, he was
staying with his mother. A-1 was also staying with his
wife and child. A-2 was 85 years of age when examined
under section 313 of the Code in the year 2018. In the
year 2005, she was 72 years of age. Does it mean that
a woman of 72 years of age was hiring rooms for his
son, who himself was a senior central government
officer staying with his wife and child. An inference
has to be drawn. The Court is cautious of drawing any
inference. The Court is afraid that the inferences
should not cross the limit and join the realm of
conjecture and surmises. But, in the instant case, the
reference is bright and shining. The reference is that
A-1 avoided any dealing with any person. He himself
did not take a house on rent. On paper, in
Jamshedpur, the house was taken on rent in the name
of A-2, but, in fact, it was taken on rent by A-1. A-1
was found present in the house when the search was
made. A-2 was not present there.
123. The court further proceeds to examine the
inventory. There are school bags, boys dresses, many
other articles belonging to the games. Does it mean
that it belonged to A-2. In the inventory, there are 68
shirts/T shirts at Sr. No. 83, there are boys dresses at
Sr. No. 55. There are various other articles, which
cannot belong to A-2 at all. The court below has rightly
concluded that the articles belonged to A-1 and not A-
2. The value assessed by the court below is also based
on evidence.
124. There is another aspect of the matter. PW1
Harbhajan Singh Mann is the person who transported
the household articles of A-1 from Dehradun to
Jamshedpur and he took Rs.30,000/- as charges for
that.
125. The articles which was searched on
05.08.2005 by the CBI in the Jamshedpur house of A-
1 was transported by PW1 Harbhajan Singh Mann at
the instance of A-1 from Dehradun. It also confirms
that those articles belong to A-1.
126. The native village Bara of A-1 was also
searched on the same day. PW208 Mithileshwar
Prasad has stated about the inventory prepared after
search made in the house of A-1 and A-2 situated in
village Bara. He proved the inventory Ex. A-481. The
court below rightly took into consideration the articles
recorded in this inventory Ex. A-481. It has old double
bed, table fans, tables, old crockery, old fridge, kitchen
articles and various other household articles. The
court below rightly held that the household articles of
A-2, if any, were found by PW208 Mithileshwar
Prasad, in the house search of A-1 and A-2 at village
Bara, the inventory of which, is Ex. A-481.
The Car
127. A car was also found in the search on
05.08.2005 from the house of A-1 in Jamshedpur.
There have been objections with regard to the car that
it did not belong to A-1.
128. It is true that PW169 Chandra Mohan
Prasad has stated about his car registration no. DR 17
C 0021, which was sold to Ramadhar Singh who was
then an MLA. The registration was in the name of
Ramadhar Singh, even when it was found in the
search. There are two more witnesses who have
spoken about this car. One is PW132 Santosh Deep.
He also has stated that A-1 had an ambassador car
ending with digit 21. A-1 was given a gunner PW177
Ranveer Singh. He has also, in paragraph 5, of his
statement confirmed that he told it to the CBI that A-1
has an ambassador car ending with digit 21. A-1
declined ownership of the car.
129. PW 10 Rakesh Obero has stated that he is
authorized dealer of Hindustan Motors. According to
him, the CBI had collected from him the
invoice/statement of account of the Ambassador car,
which was in the name of A-1. He has proved ledger
account Ex. A-34. Although PW 10 Rakesh Oberoi has
told that the car registration number was BR13C
0033, but it is not as per Ex. A-34, which he has
proved. In the vouchers, which are part of Ex. A-34,
the car registration number is recorded as BR 17C
0021. It is the car, which as per PW 247 Ramadhar
Singh, was given to A-1 by him.
130. A-1 in his examination under Section 313
denied all these averments. The registered owner of the
car is Ramadhar Singh. He himself has stated that he
had given this car to A-1 in the year 1993 for some
time. He has stated that the car was out of use
sometimes two years after 1993-94. As stated, PW10
Rakesh Oberoi has categorically stated that this car
was repaired in his workshop in the year 2004-05. The
other witnesses have also stated about the use of the
car by A-1. These all facts conclude that, in fact,
although the car in question was registered in the
name of PW247 Ramadhar Singh, but, A-1 was its
owner, who had been using it for a long. CBI has
valued this car at Rs.1,50,000/-, but, the Court below
rightly reviewed it to Rs.75,000/-. There appears to be
no reason to doubt this valuation.
Recovery of Rs. One Lakh Cash
131. According to the prosecution, Rs. One Lakh
was recovered in cash in the search. On behalf of A-1,
it is being argued that in fact, DW5 Harinam Singh
had come to Jamshedpur for the treatment of his
daughter Nishu Kumari. He was staying in the rented
house of A-2 where the search was conducted and Rs.
One Lakh which the CBI received on that date, did
belong to DW5 Harinam Singh.
132. On behalf of A-1, three witnesses have
been examined for this purpose. DW5 Harinam Singh,
DW7 Manoj Kumar Singh and DW8 Sachin Kumar
Rathour. DW5 Harinam Singh has stated that on
05.08.2005, his daughter was admitted in the
hospital. He was staying with A-2 in the rented house.
On that date, in the morning, when he reached in the
house, CBI stopped him and took Rs. One Lakh from
the house, which he had collected for the purpose of
the treatment of his daughter.
133. DW7 Manoj Kumar Singh is a
photographer. According to him, on the date of search,
he has taken photographs. He found DW5 Harinam
Singh there, who told it to him that CBI had broken
the door of his room.
134. DW8 Sachin Kumar Rathore at the relevant
time was working as a pharmacist with a hospital. He
has submitted a few documents with regard to a
patient Nishu. The Court below did not believe, DW5
Harinam Singh and other witnesses who have
supported his case for various reasons including
the source of money and the credibility of DW5
Harinam Singh.
135. The court below has rightly disbelieved
DW5 Harinam Singh and his story with regard to Rs.
One Lakh. In his examination in paragraph 19, DW5
Harinam Singh has stated that in the night, he had
come to sleep in the room, where search was
conducted. He states that on 06.08.2005 in the
morning he found A-2, A-1's wife and other family
members in the house, but, A-1 was not there. He also
states in the same paragraph of his statement, that on
06.08.2005, CBI was not in the house. He did not see
CBI at 05:30 in the morning. This is wrong statement.
CBI has conducted search till 10:30 on 06.08.2005 as
told by PW246 Manoj Pangarkar and other witnesses.
It has been told by the witnesses that in fact, after
3:00 p.m. on 05.08.2005, A-1 and his family members
had left the house. They did not return. Only wife of A-
1 had returned at 09:00 next morning when she was
handed over jewellery and Rs.75,000/- out of Rs. One
Lakh recovered from the search.
136. The court below rightly took into notice
that in fact, DW5 Harinam Singh was not able to tell
the specification of the house. (paragraph 13 of his
statement). In fact, in his statement at paragraph 13,
DW5 Harinam Singh could not reveal exactly as to
whether the house was single storied or double storied
house. The reading of the statement of DW5 Harinam
Singh reveals that he is not truthful witness. His
statement is not transpiring confidence. A-1 could not
even show that Rs.1 Lakh which was recovered during
the search belong to any other person. In fact, Rs. 1
Lakh which was recovered during search belonged to
A-1. Prosecution has proved it beyond reasonable
doubt.
Gold Jewellery
137. Certain gold jewellerywere also recovered
during the search. On behalf of A-1, it is argued that
the valuation of jewellery should have been done
according to the date of its acquisition and not when it
is valued. Reference has been made to the statement of
PW 250 Sri Surendra Kumar Rohilla, the IO. The
jewellery was recovered at the time of search. It was
valued and a report prepared. The court below has
taken into consideration the statement of the
witnesses. The best person to reveal the year of
acquisition and its cost would have been A-1 from
whose house, these articles were recovered. But, he
did not reveal anything. CBI had no other option, but,
to value it as per the existing rate and that is what the
CBI has done. It does not vitiate the valuation. The
court below rightly concluded that the valuation done
by the CBI cannot be doubted.
138. In view of the above, this Court is of the
view that the court below has rightly reviewed the
value of car and has also rightly rejected the other
objections raised on behalf of A-1 with regard to
statement B of his property.
Statement 'C' of A-1
139. This statement has four sub-heads. On
behalf of A-1 objections have been raised on item at
Sr. nos. 2 and 3. One is LIC survival benefits and the
other is interest and dividends.
140. Under the LIC survival benefits, Rs.
20,000/- have been calculated by the CBI, which was
received by A-1 in the year 2004. It is argued that in
fact, it was a money back policy taken in the year
1994, therefore, A-1 could have also received
Rs.20,000/- in the year 1999. If A-1 had received this
money, he could have produced any document, which
he did not. Therefore, the objections raised on behalf of
A-1 has rightly been rejected on this point by the court
below.
141. At Sr. no. 3 in statement C under the head
interest and dividend etc., the CBI had given benefit of
Rs. 2,27,035/-but the court below found this amount
at Rs.5,80,001/-. On behalf of A-1, it is submitted that
this amount ought to have been calculated at Rs.
6,49,193/-. But, how could it be calculated at Rs.
6,49,193/-. There is no averment made on behalf of A-
1. The court below has taken into consideration each
and every document on record to calculate the amount
of interest and dividends under statement C of A-1.
CBI has claimed this amount as Rs. 2,27,035/- but
the court below had found that this amount should be
Rs.5,80,001/- and this has been calculated in
paragraph 381 to 383 of the impugned judgment. How
is this amount not correct? How and why this amount
should be increased to Rs.6,49,193/-? It has not even
been shown by A-1. Mere assertion does not establish
the case of A-1. It is not something, which the
prosecution alone could have proved. It is a benefit
given to A-1 with regard to his income during the
check period. If A-1 had received some income, he
would have included it, he would have shown
documents but, as stated, A-1 did not adduce any
evidence. Therefore, the finding recorded by the court
below does not warrant any interference on this point.
Statement 'D' of A-1
142. With regard to statement D of A-1, on
various heads, objections have been raised by A-1.
They are under the head of Sr. no. (1) kitchen
expenses, (3) transport charges (8) repair of a car, (9)
travel charges; and (10) Mess and food charges.
143. With regard to kitchen expenses, it is
argued on behalf of A-1 that, mother of A-1 was an
agriculturist having large property in the State of
Bihar. All the eatables were brought by her from her
village. Therefore, this amount could have been
reduced to half.
144. A-1 was staying with his wife and son. He
was a senior officer. The court below took into
consideration every aspect of the matter and rightly
concluded that the amount of kitchen expenses cannot
be reduced to Rs. 3,30,000/-, instead, it is rightly fixed
at 6,59,429/-. This Court is of the view that the
finding recorded by the court below is based on
evidence.
145. At Serial no. 3 for transport charges, Rs.
30,000/- have been recorded. In fact, on his transfer
from Dehradun to Jamshedpur, the household articles
of A-1 were transported by PW1 Harbhajan Singh
Mann and he charged Rs. 30,000/- for it. He has
proved all the documents. On behalf of A-1, it is
argued that on his transfer, A-1 could have got
reimbursement for it. But, A-1 did not prove it. He did
not show that he, in fact, had received Rs. 30,000/- as
reimbursement. For the want of such
documents, it cannot be said that this amount was
received by A-1.
146. At Sr. no. 8, in the statement 'D', under the
head of repair of car, Rs. 10,000/- expenses have been
shown. It has been proved by PW10 Rakesh Oberoi.
This is with regard to the car, which was found during
search on 05.08.2005. The car was though registered
in the name of PW247 Ramadhar Singh, but, this
Court has already concluded that in fact, A-1 was
owner to it. Therefore, expenses on repair has rightly
been included under this subhead.
147. On behalf of A-1, it is also argued that the
travel charges of Rs.72,000/- cannot be shown as
expenses because whatever journey A-1 undertook by
way of air travel, that was with regard to official
business and he must have been reimbursed for it. In
fact, PW3 Naveen Singh Rawat and PW5 Bhagwan
Singh Bisht have stated about the air travel charges of
Rs.72,000/- in the name of A-1. This is not disputed
that A-1 undertook this journey and spent Rs.
72,000/- on it. But, what is being argued is that A-1
must have been reimbursed this amount. But, A-1
has not proved it. This remains in the area of expenses
alone and it cannot be deducted mere on assumption.
148. Lastly, objections have been raised with
regard to mess and food charges of Rs. 4,798/-. A-1
has denied of having made this payment.
149. PW9 Vijay Kumar is Assistant Sub-
Inspector, ITBP Dehradun. He received this payment.
According to him, he received this amount in cash and
his Commandant had told it to him that the booking is
for the guest of Income Tax Commissioner. A-1 in his
examination under Section 313 of the Code, in answer
to question 143 has stated that he stayed in the
guesthouse, but, according to him, he did not make
the payment. If A-1 himself had stayed in the
guesthouse, who had made payment for him. He could
have revealed it, but, he did not reveal it. PW9 Vijay
Kumar has categorically stated that he had received
the amount in cash from the guest. Therefore, it is
right to conclude that A-1 spent Rs.4,798/- for mess
and food charges in ITBP guesthouse, as stated and
proved by PW9 Vijay Kumar.
150. In view of the foregoing discussion, this
Court is of the view that with regard to the
disproportionate assets, the court below has rightly
concluded that the A-1 was in possession of assets
amounting to Rs.23,26,480/- more than his known
source of income. The finding recorded by the court
below is in accordance with law. There is no infirmity,
which may warrant any interference by this Court.
DISPROPORTIONATE ASSETS OF A-2
151. A-2 is mother of A-1. As stated, she was 85
years of age when examined under section 313 of the
Code, in the year 2018. The CBI also prepared A, B, C
and D statements of A-2. On behalf of A-2, it is argued
that ABCD statements are prepared for public servant.
The income of A-2 pertaining to whole of her life
should have been taken into consideration because
ABCD statements of A-2 were prepared it vitiates the
right to fair trial to A-2.
152. On the other hand, on behalf of the CBI, it
is argued that merely because ABCD statements of A-2
have been prepared, it does not affect the right to fair
trial of A-2 at all. It is argued that A-2 has all the time
been free to plead her case and bring on record any
evidence that was not produced by the CBI with regard
to her income and expenditure.
153. As stated, the trial has been initiated
against a public servant and non-public servants. The
non-public servants have been charged for abetting
the commission of the offences by the public servant
under the Act.
154. In the case of Jaydayal Poddar (supra), the
Hon'ble Supreme Court has categorically observed that
in cases of benami transactions, generally direct
evidence is not found. The circumstances are taken
into consideration. One of the important
circumstances is source of the purchase money. In
paragraph 7 of the judgment in the case of Jaydayal
Poddar (supra), the Hon'ble Supreme Court, in fact,
used the expression "whence the purchase money
came, is by far the most important test for
determining whether the sale standing in the name
of one person, is in reality for the benefit of
another".
155. The source of income of the ostensible
owner, it also required to be seen. In the case of
Jaydayal Poddar (supra), K. Ponnuswamy(supra), this
proposition has already been upheld by the Hon'ble
Supreme Court. In the case of J. Jayalalitha (supra)
also, the proposition as laid down in the case of K.
Ponnuswamy(supra) has been referred to and upheld.
Therefore, if ABCD statements of a non public
servant(in the instant case of A-2) is prepared, it does
not, in any manner, adversely affect or prejudice the
right of fair trial of A-2. In fact, if ABCD statement of a
non public servantis also prepared in such cases, it
would facilitate and help the non public servant also to
know as to what is the case against him and what he
has to defend. At the same time, it also helps the court
in arriving at a just conclusion.
Statement 'A' of A-2
156. No objections have been raised on behalf of
A-2 or any other appellants with regard to statement A
and finding on it by the trial court with regard to A-2.
In fact, in the charge sheet, as per statement 'A' of
Gulab Devi, the total cost of the property was Rs.
6,33,467/-, but, the court below enhanced this
amount to Rs. 6,81,889/-. Each and every document
have been taken into consideration alongwith the
statements of the witnesses by the court below while
recording the finding on the statement of 'A' of A-2. As
stated, on behalf of appellants, these findings on
statement 'A' have not been challenged. No objections
have been raised, therefore, this Court has no reason
to make any inference in the finding recorded on
statement 'A' of A-2.
Statement 'B' of A-2
157. Statement 'B' of A-2 is with regard to
assets at the end of the check period. The cost of first
three properties in this statement is zero as per
prosecution. It has been accepted as such by the court
below. This finding has not been challenged before this
Court.
Rajpur Road House
158. At Sr. no. 4 of it, a property house no.
169/21, Rajpur Road, Dehradun (for short 'Rajpur
Road house') is recorded and its value is claimed by
the prosecution as Rs. 79,75,606/-.It is heavily
objected to by A-1 and A-2.
159. On behalf of A-1, the following objections
have been raised with regard to valuation of Rajpur
Road House:-
i. The prosecution showed the valuation
of the house for Rs. 1.03 crores in the
FIR. The CPWDvalued the house at
Rs. 94 Lacs and revised it to Rs.
79.75Lacs. This shows the
arbitrariness of the prosecution.
ii. Valuation by CPWD is an estimation
and far from perfect. PW66 Rajendra
Singh, CPWD Engineer deposed that
valuation can change up to 20 to 25%.
iii. PW66Rajendra Singh had deposed
that the items were valued at the
market rate.
iv. Valuation by CPWD is not binding on
the Income Tax Officer as per section
142(7) of the Income Tax Act.A-2 got
constructed her house through
contractor and a family friend Ranvir
Singh whose son PW104 Pramod
Kumar has statedabout it. The house
was valued by PW153 A.S. Gupta. He
has correctly valued the house. This
valuation should have been accepted.
v. A-2 got her house valued by registered
valuer. Shri A.S. Gupta, who valued
the house at Rs. 39.5 Lakhs. Shri A.S.
Gupta, admits that valuation done on
30.03.2003 and 30.12.2003 after
proper measurement of building was
correct.
vi. Valuation of any house is always
estimation. So, it can never be perfect.
Reference has been made to the
principle of law as laid down in the
case of Bholanath Majumdar v. ITO &
Ors., (1996) 221 ITR 608 Gauhati. In
the case of Bholanath Majumdar
(supra), the Hon'ble Supreme Court
held that "A valuation report is only
an opinion of a valuer".
160. On behalf of A-2, following objections have
been raised on the valuation of the Rajpur Road
house;
(i) Rough notes were not attached with
the report by PW66 Rajendra Singh. It
makes the report incomplete.
(ii) Report of a valuer in an expert opinion
only and without rough notes, such
reports cannot be accepted. In fact, on
behalf of A-3, certain arguments were
raised with regard to a valuation report.
These arguments have beenimpliedly
adopted by learned counsel appearing
for A-2.
(iii) The grounds of opinion of an expert
are also relevant under section 51 of
the Evidence Act. In the absence of
rough notes, the report given by PW66
Rajendra Singh cannot be accepted, as
such.
(iv) The statement of PW104 Pramod
Kumar needs deeper appreciation.It is
his father who got the Rajpur Road
house constructed for A-2. Electric
work valuation, furniture valuation and
horticulture valuation is also guess
work.It is not established as to how this
valuation has been done.
(v) The valuation submitted by A-2 has
to be accepted. The report given by
PW153 A.S. Gupta is contemporary.It
was prepared when the house was
under construction, therefore, it is
most reliable.
161. On behalf of the CBI, it is submitted that in
fact, the valuation was done by PW66 Rajendra Singh
on the basis of CPWD rates. It was done by a team of
experts and it is in great detail, whereas the report
submitted on behalf of defence is not reliable.The
report submitted by PW123 A.S. Gupta is unbelievable
report because the first report was prepared by this
witness without inspecting the house. He has also
admitted that he prepared the report,under the
instructions of A-1.
162. The prosecution did not hide anything.
Prosecution examined PW66 Rajendra Singh who
prepared valuation report of the Rajpur Road house at
the instance of the CBI. The prosecution has also
examined PW 153 A.S. Gupta who prepared valuation
of the Rajpur Road house at the instance of A-1. Rival
submissions have been made on behalf of the parties
on this issue. Which report is to be accepted? What
would be the valuation or cost of the house?
Undoubtedly, a valuer report with regard to the
valuation of the property is definitely an opinion which
would fall for scrutiny of the court. It is also true that
the basis of the opinion also helps the Court to
appreciate an opinion of the expert. It can also not be
doubted that whatever be the opinion with regard to
the valuation of the house, it may never be the exact
cost of the house. The best opinion may reach close to
the actual valuation. The actual valuation may be told
by the person who constructed the house. The person
who constructed the house can produce each and
every bill and receipts by which the materials were
purchased in constructing the house. Who constructed
the house, is another issue, which is examined at
other place in this judgement. At this moment, this
Court is concerned about cost of the Rajpur Road
house.
163. PW66 is Rajendra Singh. He with the help
of PW 98 Avneesh Kumar Deshwal , PW149 A.K.
Chaddha, PW150 S.P. Garg, and PW187 D.D. Gupta,
prepared the valuation report which is Ex. A-116. In
fact, PW98 Avneesh Kumar Deshwal did horticulture
valuation. PW149 A.K. Chaddha and PW150 S.P. Garg
did electric valuation. According to PW66 Rajendra
Singh, he construed a team of experts for valuation of
the Rajpur Road house. The team with the help of CBI
Officers, inspected the house, took measurements and
based on rates of CPWD valued the house and
accordingly the report was prepared. He proved the
report Ex.A-116. According to this report, the
valuation of the Rajpur Road house is hereunder:-
"ABSTRACT OF COST
Assessment of House No. 169/21, Rajpur Road, Dehradun
A. Cost of Civil Work Rs. 70,49,280.00
B. Cost of Horticulture Rs. 1,46,364.00
C. Land Cost (As per actual
Measurement of land) Rs. 17,70,747.00
Actual measurement of land = 1539.78 Sqm.
As per Registry =752.50 Sqm.
D. Electrical Provision Rs. 4,49,962.00
Total Rs.94,16,353.00
Say Rs. 94,16,400.00
Sd./ Sd./
Executive Engineer Executive Engineer (Elect.)
Dehradun Central Division No. 1 Dehradun Central Elect. Divn.
C.P.W.D., Dehradun C.P.W.D., Dehradun"
164. The court below examined this valuation
report and found that the cost of land is Rs. Three
Lakhs. In fact, in the instant case, sale deed of the
land was executed in the name of A-2 by PW207 Vivek
Kumar. There are other witnesses also who have
stated about the sale deed which includes PW14 Iliyas,
PW58 Avdesh Kumar. Some of these witnesses have
stated that the deal was finalised for Rs. Twenty Lakhs
but A-1 only paid Rs. Three Lakhs through bank draft.
As stated, the court below concluded that
the cost of the land is Rs. Three Lakhs which is not
challenged. Therefore, there is no reason to examine
the evidence with regard to cost of the land. It shall be
taken at Rs. Three Lakhs.
165. Ex.A-116 is not only one page report. Fact
remains this report is quite in detail. It gives each and
every measurement and thereafter it deduces the cost
of the construction. This report runs in many pages. It
has estimations, it has corrections.
166. In the original record of this case, this
report is in D153. Its reading is quite extensive. This
report cannot be doubted on the ground that it is
without basis of its opinion. PW66 Rajendra Singh has
stated that based on CPWD plinth rate, report has
been prepared, measurement have been taken. Report
A-116 is an expert opinion report, which deserves
acceptance. There is no doubt about it. The report is
almost in 50 pages beginning with D153/2 to
D153/51. The exhibit has been marked on D153/2.
Although it is argued on behalf of the appellants that
rough notes have not been preserved. Reference has
been made to the statement of PW66 Rajendra Singh
at paragraph 8, where, he has stated that he did not
check rough notes while examining the actual report.
In paragraph 9, he denied the suggestion that they
destroyed rough notes. In fact, some of the parts of
Ex.A-116 appears to be rough notes. They are
D153/33 to D153/39, which are bare measurements
alone. Again, D153/45 is also a sketch. They are
rough notes. This report Ex.A-116 is based on opinion
and there is no reason to discard this report.
167. A report prepared by PW153 A.S. Gupta
has been put into service on behalf of the appellants. It
requires examination. PW153 A.S. Gupta has stated
that he met A-1 through Alok Jain. According to him,
Alok Jain requested him that he should prepare
valuation report of a house, which was being
constructed by A-1 and he prepared a report Ex.A-347.
According to this report, the total valuation of the
property is Rs.21,30,000/- This witness PW153 A.S.
Gupta prepared another report which is Ex.A-361. It is
dated 06.02.2006 and according to it,
the extra work in the building was done of Rs.
8,55,000/-.
168. This report has not been believed by the
court below and it has rightly been done so. PW153
A.S. Gupta has stated that he had given the original
valuation report to CBI. A reading of the statement of
PW153 A.S. Gupta reveals that this witness is totally
unreliable and not credible at all. He did not act
professionally. In paragraph 11 of his statement,
PW153 has admitted that he told it to the IO that A-1
had requested him in the year 2005 to make the
valuation report of Rajpur road house fixing the
valuation at around Rs.20,00,000/- Lakhs. According
to him, he prepared the report of the year 2005, but,
put the date of 30.03.2003 on it.
169. PW153 A.S. Gupta has also confirmed that
he told it to the Magistrate in his examination under
section 164 of the Code that the valuation was done by
him in the year 2005 and it was dated 30.03.2003, as
required by A-1.
170. PW153 A.S. Gupta has also stated that he
told it to CBI that in the year 2006, A-1 had requested
him to revise the valuation report and fix it at about
Rs.30 Lakhs. He accordingly prepared another report.
In fact, the arguments which have been raised on
behalf of the appellants to assail the valuation report
which was proved by PW66 Rajendra Singh applies to
the case of the valuation report prepared by PW153
A.S. Gupta. Two reports have been proved by this
witness, Ex.A-347 which is dated 30.03.2003 and
Ex.361, which is dated 06.02.2006. Both these reports
are without any measurements, sketch and rough
notes.
171. In report Ex.A-347, PW153 A.S. Gupta has
written under the caption "part II valuation" that the
marble stone was procured from Rajasthan at a very
cheap rates and the steel required was also procured
from a family friend from Jamshedpur at a very cheap
rates. How could PW153 A.S. Gupta write like this?
Who told him? How did he get the information of
bringing steel from Jamshedpur and marble from
Rajasthan? But, PW153 A.S. Gupta has stated before
the court that he wrote all these things
under the instructions of A-1. In fact, when this report
Ex.A-347 was prepared by PW153 A.S. Gupta,
according to him, he had not inspected the house.
Based on a map, he simply prepared the valuation
report. This valuation report Ex.A-347 which is proved
by PW153 A.S. Gupta, is in fact, a waste paper. It
cannot be termed as a valuation report. It is a false
document prepared by PW153 A.S. Gupta at the
behest of A-1. Another report was prepared by PW153
in the year 2006, which is Ex.A-361. It also does not
have any basis. It was also prepared by PW153 A.S.
Gupta under the instruction of A-1. This report is also
not reliable at all.
172. It is argued on behalf of the appellants
that, in fact, A-2 had got the house constructed
through one of the family friends. Reference has been
made to the statement of PW104 Pramod Kumar. This
witness has stated that his father had constructed the
house of A-2. His father was 73 years of age in the
year 2003. It is also argued that there may be variation
of the cost, if the house is constructed by some person
on his own. But, then, it was to be proved by the
person who constructed the house. The statement of
PW104 Pramod Kumar is not reliable. There is no
document which would show that father of PW104
Pramod Kumar did undertake the construction of
Rajpur Road house at the behest of A-2. There is no
record, which would reveal that the material was
brought at the cheaper rate, from the place where it
could found in abundance. The court below rightly
discarded the statement of PW104 Pramod Kumar.
173. Therefore, this court is of the view that the
court below has rightly concluded that the cost of the
Rajpur Road house is Rs.79,75,606/-. It does not
require any interference. The court below rightly
accepted the report Ex.A-116 except the cost of land,
which was taken at Rs. Three Lakhs based on the
registered sale deed. Therefore, the cost of the Rajpur
Road house has rightly been assessed by the court
below at Rs.79,75,606/-. This does not require any
interference.
174. In the statement 'B' of A-2, there are total
11 immovable properties and 5 movable assets as
shown in the chargesheet.
Other Properties
175. Grave objections were taken on behalf of
the appellants with regard to the valuation of the
Rajpur Road house, as accepted by the court below.
This part has already been discussed. With regard to
other properties under statement 'B', as such no
objections have been raised on behalf of the
appellants. The court below discussed each of the
properties in statement 'B' of A-2, as recorded in the
chargesheet. The valuation as given by the prosecution
has been accepted except the property at Serial No. 8
of the statement 'B' of A-2 in the chargesheet. It is land
at Jamshedpur, which is valued at Rs. 2,05,350/-. In
fact, it was neither proved by the prosecution nor
accepted by the defence. Therefore, the court below
concluded that the prosecution could not prove that
the property at Sr. No. 8 in the statement 'B' of A-2,
as shown in the chargesheet, was available with A-2.
The total value of the property at the end of the check
period at the hands of A-2, as per prosecution as
shown in the chargesheet, is 1,40,10,824/- The court
below accepted the total value at Rs. 1,38,05,478/-.
This Court is not going into the detail analysis of this
property in statement 'B' of A-2 because, as stated,
there has been no objections on any of the findings
with regard to these properties, except the Rajpur
Road House, which has already been discussed. This
Court has found that the valuation of the Rajpur Road
house as accepted by the court below is lawful. The
court below righly concluded that the assets at the end
of check period with A-2 was at Rs. 1,38,05,470/-.
Statement 'C' of A-2
176. Statement 'C' pertains to the income during
the check period. There are in all seven items under
statement 'C' of A-2 as shown in the chargesheet.
Income from Agriculture and Rent
177. At Sr. No. 1 of it is the income of A-2 from
agricultural land and rental income. It is taken at Rs.
59,10,300/-. The court below did not accept the
income of A-2 from agricultural land at Rs.
59,10,300/- as shown by the CBI in its
chargesheet. The court below found that, in fact, A-2
had annual income of Rs. 45,000/- from agriculture.
For the 8 years of check period this total value was
calculated at Rs. 3,60,000/- and Rs. 45,000/- as the
rental income of Rajpur Road house has been added to
it. Accordingly, the court below found that the income
of A-2 from agricultural land and rental income during
the check period was Rs. 4,05,000/-. The court below
also did not take into consideration the HUF income of
A-2 as claimed by her and considered that, in fact, the
HUF had already been partitioned.
178. On behalf of A-1, it is argued that the
income of A-2 is as follows:
(A) Agricultural income for the
check period - Rs. 75,10,300/-
(Rs. 59,10,300/- upto March,
2004 and Rs. 12,0,000/- for
financial year 2004-05 and Rs.
4,00,000/- from April, 2005 to
August, 2005).
(B) The rental income as per
income tax return from Patna
House - Rs. 4,06,910/-
(C) Misc. Income (GPF and
Gratuity of A-2's late husband,
not considered by the IO - Rs.
7,54,600/-
(D) Sale of Palio car -Rs.
3,50,000/-
(E) Loan from Ajay Kumar Singh -
Rs. 5,00,000/-
(F) Loan for Honda City car - Rs.
3,53,000/-
(G) Loan from SBI, Dehradun for
plot in USHA - Rs. 6,00,000/-
(H) Likely savings on 1.4.1997 -
Rs. 42,74,000/-
179. It is argued that after adding these incomes
with the other incomes, which the court below took
into consideration, the total income of A-2 for the
check period is Rs. 1,58,66,447/-.
180. On behalf of A-2 also, it is argued that, in
fact, the total income of A-2 during the check period
was Rs. 1,58,66,447/-, as above.
181. Learned Senior Counsel for A-1 would
challenge the impugned judgement on the following
points:-
i. The concept of HUF has wrongly
been considered by the court below.
It treats the HUF of A-2 as
dissolved. The fact is that it was not
physical division of entire property,
but only arrangement on paper for
convenience.
ii. The issue of partition had not been
brought to the notice of A-2 in the
examination made under Section
313 of the Code. Therefore, it could
not have been taken into
consideration.
iii. Even if the HUF does not carry its
PAN, it carries its Code, which is
reflected in the ITR.
iv. The concept of HUF ITR is basically
governed by Section 171 of the
Income Tax Act, 1961. Reference
has been made to the judgment in
the case of Income Tax Officer,
Calicut v. N.K. Sarada Thampatty
(Smt.), 1991 (supp) (2) SCC 737.
In the case of N.K. Sarada
Thampatty (supra), a member of
HUF filed ITR on the ground that
HUF had been partitioned by a
registered deed and by a
preliminary decree of the court.
Under such circumstances, the
Hon'ble Supreme Court observed
"Section 171 of the Act and the
Explanation to it, prescribes a
special meaning to partition
which is different from the
general principles of Hindu law. It
contains a deeming provision
under which partition of the
property of HUF is accepted only
if there has been actual physical
division of the property, in the
absence of any such proof, the
HUF shall be deemed to continue
for the purpose of assessment of
tax"..
v. The court below did not appreciate
that A-2 was under control and
possession of the agricultural land
and agricultural income.
182. Learned counsel for A-2 also argued with
regard to HUF of A-2. He would also argue that the
court below has wrongly taken into consideration that
HUF property had been partitioned because, it is
argued that, this fact has not been brought to the
notice of A-2 under Section 313 of the Code. A fact
which has not been brought to the notice of the
accused under Section 313 of the Code, according to
the learned counsel for A-2, cannot be taken into
consideration. It cannot be read against such accused.
Learned counsel for A-2 has also raised the following
points:-
i. HUF issue was not raised by CBI. HUF
was not a point for determination
formulated under Section 354 of the
Code.
ii. Under Section 171 of the Income Tax
Act, HUF continues to remain HUF until
dissolved and such satisfaction was
recorded by the Income Tax Officer.
iii. The partition of HUF property cannot be
taken into consideration because such
partition deed required registration
under the Registration Act. Such
document is also hit by the provisions of
the Registration Act.
183. First and foremost, the income of A-2 from
agriculture has to be examined.
184. Learned counsel for the CBI at various
stages has argued that, in fact, the charge under
Section 13 of the Act which has been framed against
all the appellants (on non public servants read with
109 IPC) gives opportunity to the person charged
under such offence, to explain the source of income.
Section 13(1)(e) has been read in this context, which is
as hereunder:-
"13 Criminal misconduct by a public
servant. - (1) A public servant is said to
commit the offence of criminal misconduct, -
(a)...........
(b)...........
(c)...........
(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 source of
income."
(emphasis supplied)
185. Referring to Section 13 (1) (e) of the Act,
learned counsel for the CBI would submit that once
the income of the person charged is revealed, such
person is required to explain the source of it. Such
person is required to satisfactorily account for such
income. It may be done at the stage of investigation
and subsequently such person gets another
opportunity to satisfactorily account for the assets
during trial.
186. In the instant case, in the chargesheet, the
IO has taken income of A-2 from agricultural land and
rental income at Rs. 59,10,300/- for the check period.
The IO writes in the chargesheet that since A-2 had
disclosed this income in the ITR, therefore her income
is accepted as such. The Court proceeds to appreciate
the arguments with regard to the agricultural income
and rental income of A-2.
187. The question is as to whether A-2 had any
agricultural income and if so what was it? In fact,
there are two documents with regard to agricultural
income of A-2. One is Ex. A-199, which is agricultural
income certificate from the year 1996-97 to the year
2003-04 of the agricultural land of A-1 and A-2. It was
prepared in the year 2006. The second document is
Ex. A-348. It is a certificate given by an Administrative
Officer. According to it, the annual income from
agriculture of A-2 is Rs. 12,70,702/-. Both of these
documents have not been relied on by the court below
and has rightly been so done.
188. PW 82 Ramji Singh is the person, who has
given the certificate Ex. A-199 and other certificates
with regard to agricultural income of A-2. He has
proved all those documents Ex. A-192 to A-205.
Ex. A-200 is a certificate with regard to income from
fisheries. Ex. A-202 is details of the income from
agriculture from 1996-97 to 2003. There are other
certificates for different years, which are part of this
exhibit.
189. According to PW 82 Ramji Singh, he along
with PW 110 Manmohan Prasad prepared the report
Ex. A-199. He admits that he did not see any poultry
farm running. This witness was declared hostile by the
prosecution and he has been cross-examined. In
paragraph 12 of his statement, PW 82 Ramji Singh
admits that he prepared the reports Ex. A-199 based
on a report of Agricultural Officer. They did not see
any crop on the field. They did not collect information
with regard to income from any person, who may have
purchased the crops from A-1 and A-2. They just
prepared the report. According to PW 82 Ramji Singh,
he inquired from local people with regard to the crops
and thereafter they made their report. How can such
report be relied on?
190. PW 110 Manmohan Prasad was also a
member of the team, who prepared the reports as
proved by PW 82 Ramji Singh. In his examination-in-
chief, PW 110 Manmohan Prasad corroborates the
statement of PW 82 Ramji Singh. PW 110 Manmohan
Prasad also admits that based on the report of
Agricultural Officer, they prepared the report Ex. A-
199. They did not see any crop, though at one stage he
submits that he had seen certain crops at the land in
question. He has been extensively cross-examined and
it reveals that, in fact, report Ex. A-199 is nothing but
a report without any basis.
191. PW 152 Pradhumna Pandey was also
signatory to the reports proved by PW 82 Ramji Singh.
According to him also, he prepared the report Ex. A-
202, which is with regard to break-up of the crops
based on the report of the District Agricultural Officer.
PW 215 Udai Shankar Singh has stated about the
tubewell, which was non-functional. PW 240 Chandra
Shekhar Singh has also stated about Ex. A-202.
According to him, they prepared the report based on
the rates fixed by the Central Government or the State
Government. PW 240 Chandrashekhar Singh was
District Agriculture Officer at the relevant time. He
gave details of income from crops. He proved
Ex. A-542.
192. Ex. A-199 gives details of crops area-wise.
It also records the expenditure incurred in harvesting
such crops and income out of it. But, how can it be
made in the year 2006? How could somebody estimate
in the year 2006, as to what crop and in which area
was grown in the year 1996-97, 1997-98, 1998-99,
1999-2000, 2000-01, 2001-02, 2002-03, 2003-04?
How could expenditure be estimated? Similarly, in Ex.
202, there are details of fertilizers, labour charges,
irrigation, storage with regard to the crops for many
years, but how could such detail be ascertained by
someone? There is no basis to this report. The court
below rightly discarded these documents to ascertain
the income of A-2 from agriculture.
193. There is another document with regard to
agricultural income of A-2. It is Ex. A-348 and 349.
These are certificates issued by PW 154 Ashok Kumar
Pal and PW 193 Dharmraj, respectively.
194. PW 154 Ashok Kumar Pal has stated that
he issued a certificate Ex. A-348 on 5.4.2005 with
regard to agricultural income of A-2. According to this
certificate, the annual agricultural income of A-2 was
Rs. 12,50,750/-.
195. According to PW 154 Ashok Kumar Pal, he
gave certificate Ex. A-348 on the basis of certificate
given by PW 193 Dharmraj, who was working under
him. The certificate given by PW 193 is Ex. A-349.
196. PW 193 Dharmraj Singh has stated that he
had issued certificate Ex. A-349. According to this
report, the joint family property of A-1, A-2 and others
had annual agricultural income of Rs. 12,50,750/-.
This witness has stated that based on his estimation,
he had given this certificate. This report is dated
23.03.2005. It may be noted that the report
subsequently given by PW 154 Ashok Kumar Pal,
which is Ex. A-348 is dated 05.04.2005. Why did they
prepare these reports?
197. PW 241 Altaf Ansari has stated that certain
documents were given by him to CBI by seizure memo
Ex. A-543. It includes a letter Ex. A-350. It is a letter
given by A-2 to the Administrative officer for
agricultural income certificate. PW 241 Altaf Ansari
was the Assistant Regional Officer, Nabinagar Office at
the relevant time. It means that on an application of A-
2, PW 193 Dharmraj Singh and PW 154 Ashok Kumar
gave reports Ex. A-349 and Ex. A-348, respectively,
without any basis.
198. The reports Ex. A-348 and A-349 are
without any basis. Two Government Officers have
without any reason given reports that the agricultural
income of A-2 is Rs. 12,50,750/- annually. These both
reports are also most unreliable documents.
199. As stated, with regard to the agricultural
income of A-2, there have been three documents. One
the report proved by PW 82 Ramji Singh Ex. A-199
and the others and Ex. A-348 and Ex. A-349 given by
PW 154 Ashok Kumar Pal and PW 193 Dharmraj,
respectively. All these reports cannot be considered
"any opinion given". Therefore, they cannot be taken
into consideration to ascertain the income of A-2 and
the court below has rightly discarded them.
200. The best proof of agricultural income would
have been the income received by A-2. To whom, the
agricultural produce were sold? How amount was
received? In which account, it was deposited, etc.?
But, it has not been even filed by the A-2.
201. The question still remains as to whether A-
2 had any income from agriculture?
202. An argument has been advanced on behalf
of A-2 that A-2 had HUF property, which she had
shown in the income tax return. It is argued that HUF
remains HUF until dissolved.
203. On the other, on behalf of the CBI, it is
argued that prior to the year 2005, a woman could not
have been a coparcener in a HUF. A woman could not
have been a Karta. On this argument, on behalf of A-2,
it is argued that, in fact, A-2 was Manager of the HUF.
204. First and foremost, this Court would like to
clarify that, in fact, whatever income was shown in the
income tax return cannot be taken as a valid source of
income for the purposes of prosecution under Section
13 of the Act. As stated, income tax returns are
submitted for the purposes of assessing and
submitting income tax. In so far as the prosecution
under Section 13 of the Act is concerned, the question
involved is with regard to disproportionate assets. A
person charged under Section13 of the Act is required
to account for the sources of income. As held in the
case of J. Jayalalitha (supra), the income tax return
does not absolve a person charged to subsequently
account for the assets owned by him by the standard
of preponderance of probabilities.
205. On behalf of the CBI, reliance has been
placed on the principle of law as laid down in the case
of Commissioner of Income Tax v. Seth Govindram
Sugar Mills, AIR 1966 SC 24. In paragraph 10 of it, the
Hon'ble Supreme Court discussed the concept of HUF
and a role of woman in it. Different High Courts had
different views taken then. The Hon'ble Supreme Court
observed "...The said two decisions did not
recognise the widow as a karta of the family, but
treated her as the guardian of the minors for the
purpose of income-tax assessment. The said
decisions, therefore, do not touch the question
now raised. The Madras and Orissa High Courts
held that coparcenership is a necessary
qualification for the managership of a joint Hindu
family and as a widow is not admittedly a
coparcener, she has no legal qualification to
become the manager of a joint Hindu family". The
Hon'ble Supreme Court affirmed the judgment of
Hon'ble Madras High Court given in the case of Radha
Ammal v. Commissioner of Income Tax, Madras,
(1950) 18 ITR 225, in which the Hon'ble Madras High
Court had held as under:-
"The right to become a manager
depends upon the fundamental fact that the
person on whom the right devolved was a
coparcener of the joint family.....Further,
the right is confined to the male members of
the family as the female members were not
treated as coparceners though they may be
members of joint family."
"the managership of a joint Hindu
family is a creature of law and in certain
circumstances, could be created by an
agreement among the coparceners of the
joint family. Coparcenershp is a necessary
qualification for managership of a joint
Hindu family."
"It will be revolutionary of all accepted
principles of Hindu law to suppose that the
seniormost female member of a joint Hindu
family, even though she has adult sons who
are entitled as coparceners to the absolute
ownership of the property, could be the
manager of the family......She would be the
guardian of her minor sons till the eldest of
them attains majority but she would not be
the manager of the joint family for she is
not a coparcener."
206. In fact, the concept of HUF is created by a
fiction of law. The joint Hindu family concept is
something different than HUF.
207. The issue which has been raised is with
regard to devolution of interest of the coparcenary
property. The question which is being discussed is as
to whether A-1 was ever part of any HUF? Section 6 of
the Hindu Succession Act, 1956 ("the HS Act, 1956") is
relevant for this purpose. This Section was amended in
the year 2005. Prior to amendment, it was as
hereunder:-
"6. Devolution of interest in
coparcenary property.--When a male
Hindu dies after the commencement of
this Act, having at the time of his death
an interest in a Mitakshara coparcenary
property, his interest in the property shall
devolve by survivorship upon the
surviving members of the coparcenary
and not in accordance with this Act:
Provided that, if the deceased had
left him surviving a female relative
specified in Class I of the Schedule or a
male relative specified in that Class who
claims through such female relative, the
interest of the deceased in the Mitakshara
coparcenary property shall devolve by
testamentary or intestate succession, as
the case may be, under this Act and not
by survivorship.
Explanation I.--For the purposes of
this section, the interest of a Hindu
Mitakshara coparcener shall be deemed
to be the share in the property that would
have been allotted to him if a partition of
the property had taken place immediately
before his death, irrespective of whether
he was entitled to claim partition or not."
208. A coparcener, under Section 6 of the HS
Act, 1956, could have got right by birth. Such right is
called "unobstructed heritage". The concept of
coparcener and the provisions of the HS Act, 1956
have been discussed by the Hon'ble Supreme Court in
the case of Vineeta Sharma v. Rakesh Sharma and
others, (2020) 9 SCC 1. The Hon'ble Supreme Court
observed "A joint Hindu family is a larger body than
a Hindu coparcenary.....Hindu coparcenary is a
much narrower body. It consists of propositus and
three lineal descendants. Before 2005, it included
only those persons like sons, grandsons and great-
grandsons who are the holders of joint property".
209. In the case of Vineeta Sharma (supra), in
paragraph 24, the Hon'ble Supreme Court further
observed as hereunder:-
"24. Coparcenary property is the one
which is inherited by a Hindu from his
father, grandfather, or great-grandfather.
Property inherited from others is held in
his rights and cannot be treated as
forming part of the coparcenary. The
property in coparcenary is held as joint
owners."
210. The Hon'ble Court further observed
"Coparcener heirs get right by birth. Another
method to be a coparcener is by way of adoption.
As earlier, a woman could not be a coparcener, but
she could still be a joint family member".
211. Section 6 of the HS Act, 1956 was
substituted in the year 2005. Post amendment, this
Section is as hereunder:-
"6. Devolution of interest in
coparcenary property.--(1) On and from
the commencement of the Hindu
Succession (Amendment) Act, 2005, in a
Joint Hindu family governed by the
Mitakshara law, the daughter of a
coparcener shall--
(a) by birth become a coparcener in
her own right in the same manner as
the son;
(b) have the same rights in the
coparcenary property as she would
have had if she had been a son;
(c) be subject to the same liabilities
in respect of the said coparcenary
property as that of a son,
and any reference to a Hindu Mitakshara
coparcener shall be deemed to include a
reference to a daughter of a coparcener:
Provided that nothing contained in this
sub-section shall affect or invalidate any
disposition or alienation including any
partition or testamentary disposition of
property which had taken place before
20th day of December, 2004.
(2) Any property to which a female
Hindu becomes entitled by virtue of sub-
section (1) shall be held by her with the
incidents of coparcenary ownership and
shall be regarded, notwithstanding
anything contained in this Act, or any
other law for the time being in force, as
property capable of being disposed of by
her by testamentary disposition.
(3) Where a Hindu dies after the
commencement of the Hindu Succession
(Amendment) Act, 2005, his interest in
the property of a Joint Hindu family
governed by the Mitakshara law, shall
devolve by testamentary or intestate
succession, as the case may be, under
this Act and not by survivorship, and the
coparcenary property shall be deemed to
have been divided as if a partition had
taken place and--
(a) the daughter is allotted the same
share as is allotted to a son;
(b) the share of the predeceased son
or a predeceased daughter, as they
would have got had they been alive at
the time of partition, shall be allotted
to the surviving child of such
predeceased son or of such
predeceased daughter; and
(c) the share of the predeceased
child of a predeceased son or of a
predeceased daughter, as such child
would have got had he or she been
alive at the time of the partition, shall
be allotted to the child of such
predeceased child of the predeceased
son or a predeceased daughter, as the
case may be.
Explanation.--For the purposes of this
sub-section, the interest of a Hindu
Mitakshara coparcener shall be deemed
to be the share in the property that would
have been allotted to him if a partition of
the property had taken place immediately
before his death, irrespective of whether
he was entitled to claim partition or not.
(4) After the commencement of the
Hindu Succession (Amendment) Act,
2005, no court shall recognise any right
to proceed against a son, grandson or
great-grandson for the recovery of any
debt due from his father, grandfather or
great-grandfather solely on the ground of
the pious obligation under the Hindu law,
of such son, grandson or great-grandson
to discharge any such debt : Provided
that in the case of any debt contracted
before the commencement of the Hindu
Succession (Amendment) Act, 2005,
nothing contained in this sub-section
shall affect--
(a) the right of any creditor to
proceed against the son, grandson or
great-grandson, as the case may be; or
(b) any alienation made in respect of
or in satisfaction of, any such debt,
and any such right or alienation shall
be enforceable under the rule of pious
obligation in the same manner and to
the same extent as it would have been
enforceable as if the Hindu Succession
(Amendment) Act, 2005 had not been
enacted.
Explanation.--For the purposes of
clause (a), the expressions "son",
"grandson" or "great-grandson" shall be
deemed to refer to the son, grandson or
great-grandson, as the case may be, who
was born or adopted prior to the
commencement of the Hindu Succession
(Amendment) Act, 2005.
(5) Nothing contained in this section
shall apply to a partition, which has been
effected before 20th day of December,
2004.
Explanation.--For the purposes of this
section "partition" means any partition
made by execution of a deed of partition
duly registered under the Registration
Act, 1908 (16 of 1908) or partition
effected by a decree of a court."
212. How a female could have got share in the
coparcenary property prior to amendment incorporated
under Section 6 of the HS Act, 1956, is discussed by
the Hon'ble Supreme Court in the case of Vineeta
Sharma (supra) as hereunder:-
"53. Section 6 deals with devolution
of interest in coparcenary property of a
joint Hindu family governed by the
Mitakshara law. The originally enacted
provision of Section 6 excluded the rule of
succession concerning Mitakshara
coparcenary property. It provided that the
interest of a coparcener male Hindu who
died after the commencement of the 1956
Act shall be governed by survivorship
upon the surviving members of the
coparcenary. The exception was provided
that if the deceased had left surviving a
female relative specified in Class I of
the Schedule or a male relative
specified in that Class who claims
through such female relative, the
interest of such coparcener shall
devolve by testamentary or intestate
succession, as the case may be, in
order to ascertain the share of
deceased coparcener, the partition has
to be deemed before his death.
Explanation 2 disentitled the
separated person to make any claim in
case of intestate succession."
(emphasis supplied)
213. It has also been held in the case of Vineeta
Sharma (supra) "Though the widow or daughter
could claim a share, being a Class I heir in the
property left by the deceased coparcener, and a
widow was entitled, having a right to claim a share
in the event of partition daughter was not treated
as a coparcener".
214. Admittedly, husband of A-2 had died in the
year 1994. Coparcener at that time included only
male lineal descendants upto the third generation. A-2
could not have been part of HUF. She could not have
any income as such from HUF. She could have claimed
her share in the property as per the proviso to Section
6 of the HS Act, 1956 after the demise of her husband.
Even if A-2 has shown some income in the income tax
return, it cannot be presumed her income from HUF. If
she was paid some remuneration out from HUF
property, she could have revealed it.
215. What is the income of A-2? During the
check period, A 2 had applied for a flat in IRS Society,
Lucknow. A-2 filed an affidavit also along with the
application revealing her income. The stamp on which
the affidavit was recorded as per the court below is
dated 07.10.2002. It was issued from Treasury,
Dehradun. In the impugned order, it has been
observed that in this affidavit, A-2 had disclosed here
income approximately Rs. 5,00,000/- (individual +
HUF + Pension + Agriculture). As per forensic report,
this affidavit was filled in by A-1.
216. There is another document, Ex. A-118, an
application of A-2 given for obtaining Reliance Petrol
Pump. It has been proved by PW 67 Rajagopalan N.H.
Ex. A-118 is bunch of papers from paper No. 154 A/1
to 154 A/30. PW 67 Rajagopalan N.H. has stated
about these documents. Signature and writing on this
application, Ex. A-118 have also been examined
forensically. The forensic report Ex. A-362 proves that
this application form was also filled in by A-1. It bears
signature of A-2. Income of A-2 has been stated in this
application form and from agriculture, it has been
shown at Rs. 5,00,000/-, Rs. 5,80,000/- and Rs.
6,67,000/- in the year 2000-01, 2001-02 and 2002-
03, respectively. Along with this application, A-2 had
also filed her income tax returns, which are paper no.
154 A/28 to paper no. 154 A/29. It is so stated by PW
67 Rajagopalan N.H. These ITRs are for the year 2002-
03, 2003-04 and 2004-05. According to these ITRs,
agricultural income of A-2 is Rs. 6,75,300/-, Rs.
10,00,000/- and Rs. 12,00,000/-, respectively.
217. The court below took into consideration the
different income written by A-2 at different stages. The
court below also took into notice the fact that, in fact,
the application for Reliance Petrol Pump Ex. A-118 has
been filled in by A-1.
218. On the question of receiving of an affidavit
in evidence, on behalf of A-1, it is argued that an
affidavit is not evidence. Reference has been made to
the judgment in the case of Sudha Devi v. M.P.
Narayanan, AIR 1988 SC 1381 and Ayaaubkhan
Noorkhan Pathan v. State of Maharashtra and others,
AIR 2013 SC 58.
219. In the case of Sudha Devi (supra), an
affidavit was filed in evidence by a party without any
order of the court under Order 19 Rule 1 or 2 of the
Code of Civil Procedure, 1908. Under such facts the
Hon'ble Supreme Court held that "affidavits are not
indeed in the definition of "evidence" in S. 3 of the
Evidence Act". It has been followed in the case of
Ayaaubkhan (supra).
220. It is true that the affidavit is not evidence,
but if a person gives an affidavit and records
something in it, it is admission of such person. A-2 in
her application form and in her affidavit had revealed
her income. The court below took into consideration
the income recorded by A-2 in the affidavit filed for
obtaining IRS Society Flat, which was approximately
Rs. 5,00,000/- from all sources. This cannot be termed
as wrong appreciation of evidence. The court below
took into consideration the material on record to
assess the income of A-2. In fact the affidavit of A-2 is
her admission of income. There cannot be any
evidence better than own admission.
221. This Court has already held that, in fact,
prior to amendment in Section 6 of the HS Act, 1956,
A-2 could not have been part of HUF. She could have
claimed her share in the coparcenary property after
the death of her husband, as per the proviso to Section
6 of the HS Act, 1956 (Un-amended). Had A-2 claimed
her share in the HUF after the death of her husband?
It is not revealed.
222. PW 82 Ramji Singh has proved a letter Ex.
A-193. According to this witness, in Ex. A-193 (which
is an official communication by one public servant to
another), the details of property of ten persons,
including A-1 have been given. This witness has stated
in detail about Ex. A-193. He has also proved Ex. A-
194. It is detail of 90 acres of land of A-1 and his
family members. It is Tenant Ledger (a public
document). PW 82 has also proved a document Ex. A-
195 relating to partition.
223. On behalf of A-1 and A-2, it is argued that
the factum of partition has not been put to A-2 in her
examination under Section 313 of the Code, therefore,
it could not be read into evidence. In support of their
contention, learned Senior Counsel placed reliance on
the principle of law as laid down in the case of Sujit
Biswas (supra).
224. It is true that in the case of Sujit Biswas
(supra), the Hon'ble Supreme Court has held that the
circumstances, which are not put to the accused,
cannot be used against him. The question is whether
the factum of partition of the properties of A-1 and A-2
has ever been put to A-2 in her examination under
Section 313 of the Code?
225. Before proceeding further, it would be apt
to discuss Ex. A-193 in a little more detail, which is
proved by PW 82 Ramji Singh and PW 110 Manmohan
Prasad. As stated, this is an official communication
between two public servants. It has two enclosures,
which have separately been exhibited as Ex. A-194
and Ex. A-195. Ex. A-194 is Tenant Ledger and
Ex. A-195 is a certified copy of the Mutation Register.
These documents were duly attested and have been
proved as per law, in evidence.
226. According to Ex. A-193, A-1, A-2 and their
other family members had partitioned their property
situated in Village Bara and Village Bharaundi. Ex. A-
193 records that the property has been divided
amongst 10 family members of A-1 and A-2 in
Mutation Case No. 23/2002-03. Partition has been
recorded in the mutation proceedings. Separate shares
of the family members of A-1 and A-2 have been
shown in Ex. A-194. They are in eleven pages. The first
page is with regard to A-1. Ex. A-195 is two-sheets,
which, according to PW 82 Ramji Singh is Mutation
Register. In it, the shares of A-1, A-2 and other family
members have been recorded. The property, according
to this document, was partitioned and recorded in the
Mutation Register on 15.07.2002.
227. It may be re-iterated that Ex. A-194 and
Ex. A-195 are part of Ex. A-193. To be precise, Ex. A-
193, according to PW 82 Ramji Singh, is a letter
written by PW 110 Manmohan Prasad, the then
"Anchal Adhikari" addressed to "Zila Padadhikari". In
question, 166, in her examination under Section 313
of the Code, A-2 was put to explain this letter, Ex. A-
193. A-2 was categorically asked that PW 82 Ramji
Singh has stated that Manmohan Prasad, the then
"Anchal Adhikari" had written a letter to "Zila
Padadhikari", in which he had given the details of 10
persons, including A-1 and the estimated cost, income
from the year 1996 to 2005 has been written in this
communication. PW 110 Manmohan Prasad is author
of Ex. A-193. He has proved it. He had attested Ex. A-
194 and Ex. A-195 from the public documents. He has
proved them also.
228. A-2 in her examination under Section 313
of the Code (in answer to Question 166) has admitted
Ex. A-193. According to her, the document reveals that
her annual income from agriculture was in lakhs.
According to her, she used to keep entire agricultural
income with her as "Karta" of HUF, which she had
shown in her ITR. Document Ex. A-193 speaks of
partition amongst A-1 and A-2 and other family
members. Tenant Ledger Ex. A-194 and Mutation
Register Ex. A-195 are part of it. In Question Nos. 221
and 222, A-2 has been asked to explain about the
statement given by PW 110 Manmohan Prasad about
Ex. A-193. In Ex. A-193, the share of A-2 is shown as
8.34 acres. In Question No. 221, A-2 was asked that
according to PW 110 Manmohan Prasad, in her name
8.34 acre land is recorded. A-2 simply repeated the
story of HUF (As stated, it has already been held that
A-2 had no been part of HUF). In Question No. 222,
she was asked about the details of income and
expenditure from the year 1996-97 to 2004-05. In
reply to it, she says that it is a matter of record. She
tried to explain it further. Therefore, it cannot be said
that the factum of partition was not put to A-2 in her
examination under Section 313 Code.
229. In Ex. A-193, the factum of partition has
been recorded. Shares of each individual family
member have also been lodged in it. In fact, according
to it, in the share of A-1, the total land was 8.34 acres
(6.95 in village Bharaundi and 1.39 in village Bara). It
is the lowest share amongst the family members.
230. This Court has already held that prior to
amendment in Section 6 of the HS Act, 1956 in the
year 2005, a female could not have been a coparcener.
A widow could have claimed her share in the
coparcenary property after the demise of her husband.
The question is as to whether had A-2 ever claimed her
share in the HUF long after demise of her husband? A-
2 could not have been part of HUF. She could not have
been "Karta" of HUF. If she has shown herself as
"Karta" and submitted ITR as HUF, it does not give any
right to her. It does not make her coparcener then
when she could not have been a coparcener in HUF.
Prior to amendment in Section 6 of the HS Act, 1956
in the year 2005, A-2 did not have income from entire
agricultural land of the family. She could have claimed
the share to the extent of the share of her husband
after his demise.
231. This exercise is undertaken to assess the
agricultural income of A-2. From all sources, she has
written her income at Rs. 5,00,000/- per year in the
affidavit given for obtaining the flat. It includes,
according to affidavit, the HUF income. This may be
treated as income of the joint family.
232. On behalf of the appellants, it has been
argued that the partition was not actual partition.
233. In the instant case the partition has been
effected by way of a Mutation Case as revealed in Ex.
A-193. It is a public document. Such partition cannot
be brushed aside on the ground that it is for the
convenience and not actual partition. In the case of
Vineeta Sharma (supra), the Hon'ble Supreme Court
has observed as hereunder:-
"130. Earlier, an oral partition was permissible,
and at the same time, the burden of proof remained
on the person who asserted that there was a
partition. It is also settled law that cesser of
commonality is not conclusive proof of partition,
merely by the reason that the members are
separated in food and residence for the
convenience, and separate residence at different
places due to service or otherwise does not show
separation. Several acts, though not conclusive
proof of partition, may lead to that conclusion in
conjunction with various other facts. Such as
separate occupation of portions, division of the
income of the joint property, definement of shares
in the joint property in the revenue or land
registration records, mutual transactions, as
observed in Bhagwani Kunwar v. Mohan
Singh [Bhagwani Kunwar v. Mohan Singh, 1925
SCC OnLine PC 27 : AIR 1925 PC 132]
and Digambar Adhar Patil v. Devram Girdhar
Patil [Digambar Adhar Patil v. Devram Girdhar
Patil, 1995 Supp (2) SCC 428 : AIR 1995 SC
1728]."
(emphasis supplied)
234. It has been admitted on behalf of A-2 that
agricultural land belongs to ten persons. A-2 was not
part of HUF. The court below held that she had 1/10th
share in it. Though, it is observed on the basis of HUF
partition. Since A-2 was not part of HUF, there is no
question of her getting any share in HUF out from
partition, except her share after demise of husband as
per proviso to Section6 of the HS Act, 1956
(unamended). But, based on share of A-2, the
conclusion arrived at by the court below cannot be
doubted. This Court is of the view that the court below
rightly observed that agricultural income of A-2 was
Rs. 45,000/- per year. For eight years, which is the
check period, the total income has rightly been
assessed as Rs. 3,60,000/-. Rs. 45,000/- rent from
Rajpur Road house has also been added to it and the
court below concluded that the income from
agriculture as well as rent of A-2 for the check period
is Rs. 4,05,000/-. This finding is based on evidence. It
does not warrant any interference.
Non Framing of Specific Charge
235. In the chargesheet, the IO has admitted the
income from agriculture and rent of A 2 during the
check period at Rs. 59,10,300/-. It has been so done
on the basis of the income tax return submitted by A-2
as written in the chargesheet itself.
236. As per the chargesheet, the total income
during the check period was Rs. 68,26,939/-. In
paragraph 16 of the chargesheet, the IO computed the
disproportionate assets of A-2 and while doing so, he
has taken into consideration the income of A-2 during
check period at Rs. 68,26,939/-. Thereafter after
computation, the IO held that A 2 had
disproportionate assets to the extent of Rs.
75,58,295/-.
237. A-2 has been charged that she held
disproportionate assets of A-1 to the extent of Rs.
75,58,295/-. This amount has been ascertained while
believing the income of A-2 from agriculture and rental
at Rs. 59,10,300/-The prosecution had admitted it in
the chargesheet that the income from agriculture and
rental of A-2 was Rs. 59,10,300/-. Accordingly, charge
was framed. A-2 was told in advance that she had
disproportionate assets of A-1 to the tune of Rs.
75,58,295/-. A-2 was told in advance that her
agriculture income and rental income have been
accepted as Rs. 59,10,300/-. How can A-2 be asked to
prove that she had this income because it was
accepted by the prosecution? A-2 was not specifically
charged that she did not have any agriculture income.
A 2 was not specifically charged that she had no HUF
income. As stated, IO admitted the ITR submitted by A
2. This is the question which definitely requires
deliberation.
238. Learned counsel for the CBI would submit
that if there is any irregularity in framing of the
charge, it does not make any difference unless it has
"prejudiced the accused" and resulted in "failure of
justice". On behalf of the CBI following arguments
have been raised on this aspect:-
i. Any irregularity in the charge
may not vitiate the conviction
unless it is shown that it has
caused prejudice to the accused
and is resulted in failure of
justice. Reference has been made
to the judgment in the case of
Kamil v. State of UP, AIR 2019 SC
45.
ii. All the documents were given at
the initial stage to A-2 under
Section 207 of the Code. A plain
reading of prosecution case along
with accompanying documents
clearly conveyed that the
prosecution has not accepted and
seriously disputed that there was
any income of A-2 from
agriculture. A 2 fully joined the
issue and participated and never
raised any objection and cross
examined various witnesses. The
documents brought on record
show that the alleged agricultural
income was HUF and not the
personal income of the accused.
iii. A-2 herself has taken a specific
stand that she has agriculture
income of HUF and she waskarta
of HUF.
iv. A-2 furnished documents during
investigation with regard to her
income from HUF.
v. A-2 herself admitted under
Section 313 of the Code that she
is Karta of HUF. Her statement is
sufficient to show that A-2 had
complete knowledge that she has
to satisfy and prove that the
alleged agricultural income of
HUF was her own income.
vi. Even if the question of partition is
not put to A-2, it does not make
any difference because A-2
herself has claimed HUF rights.
vii. In view of Hindu Succession Act,
1956, by operation of law A-2 can
have only 4.16% share and
interest in 9 acre joint family
property.
viii. Prior to amendment made in the
Hindu Succession Act, 1956, in
the year 2005 a woman could not
have been a coparcener of HUF.
ix. As per sub-section (2) of Section
30 of the Income Tax Act, 1961,
an HUF is a separate entity or
legal person for the purposes of
income tax.
239. Undoubtedly, any irregularity in the
framing of charge may not vitiate conviction. What the
Court is discussing is the charge and evidence on it.
240. What the documents under Section 207 of
the Code had revealed? They had revealed as follows:-
i. The income Tax return with
regard to agriculture income of A-
2 was accepted by the IO.
ii. The IO had accepted that the
agriculture and rental income of
A-2 was Rs. 59,10,300/-
241. The prosecution is with regard to
disproportionate assets, which A-2 held for A-1. The
prosecution has taken into consideration the
agricultural and rental income of Rs. 59,10,300/- of A-
2. As per prosecution and charge framed on A-2, she
had disproportionate assets for A-1 to the extent of Rs.
75,58,295/-. There is no omission or absence or error
in the charge. Section 464 of the Code provides with
regard to the effect of omission, etc. in framing of
charge. It is as hereunder:-
"464. Effect of omission to frame,
or absence of, or error in, charge.--(1)
No finding, sentence or order by a Court
of competent jurisdiction shall be deemed
invalid merely on the ground that no
charge was framed or on the ground of
any error, omission or irregularity in the
charge including any misjoinder of
charges, unless, in the opinion of the
Court of appeal, confirmation or revision,
a failure of justice has in fact been
occasioned thereby.
(2) If the Court of appeal,
confirmation or revision, is of opinion that
a failure of justice has in fact been
occasioned, it may,--
(a) in the case of an omission
to frame a charge, order that a
charge be framed, and that the trial
be recommended from the point
immediately after the framing of the
charge;
(b) in the case of an error,
omission or irregularity in the
charge, direct a new trial to be had
upon a charge framed in whatever
manner it thinks fit:
Provided that if the Court is of
opinion that the facts of the case are such
that no valid charge could be preferred
against the accused in respect of the facts
proved, it shall quash the conviction."
242. Reference has been made on behalf of the
CBI to the judgment in the case of Kamil (supra). In
the case of Kamil (supra) accused were charged for
killing a person. To understand the principles laid
down in the case of Kamil (supra), it would be apt to
reproduce the charge. In para 17, it is as hereunder:-
"17. The charges framed against
the accused are as under:
"Charges
I, C.P. Singh, Special Judge (EC
Act), Budaun hereby charge you
1. Nasir, s/o Wali Mohammad, r/o
Oopar Para PS Kotwali, Badaun
2. Adil r/o
3. Kamil, s/o Banney Min as
follows:
Firstly : That you Rashid on 3-1-
1986 at about 4.00 p.m. in Mohalla
Oopar Para near Lalpul Budaun, PS
Kotwali, Badaun, formed common
intention to make murderous assault on
Akhlaq and anyone else who came to his
rescue and in furtherance of said
common intention Rashid did commit
murder by intentionally causing the
death of aforesaid Akhlaq and you
thereby committed an offence punishable
under Sections 302/34 of the Indian
Penal Code and within my cognizance.
Secondly : That you Adil on
aforesaid date, time and place voluntarily
caused Adil and thereby committed an
offence punishable under Section 323 of
the Indian Penal Code and within my
cognizance.
Thirdly : That on aforesaid date,
time and place you Kamil and Nasir along
with Rashid and Adil formed common
intention to cause hurt to Adil and
anyone else and in furtherance of said
common intention Adil voluntarily caused
hurt to Adil and you thereby committed
an offence punishable under Sections
323/34 of the Indian Penal Code and
within my cognizance.
And I hereby direct that you be tried
by this court on the said charges.
............
............"
243. The above charges categorically reveal that
Kamil was charged for the offence under Section 323
read with 34 IPC.
244. One of the accused in the case of Kamil
(supra) was charged for the offence under Section 302
read with 34 IPC. Kamil was also charged that he
along with person charged under Section 302 read
with 34 IPC assaulted and caused harm to a person.
Under those facts and circumstances, the Hon'ble
Supreme Court observed that the appellant Kamil had
clearly understood that the charge has been framed
against him under section 302 read with 34 IPC. The
conviction of Kamil under Section 302 read with 34
IPC upheld by the Hon'ble Supreme Court observing
that no prejudice has been caused to the accused nor
failure of justice has been shown to have been
occasioned warranting interference in the impugned
judgment.
245. A person charged under Section 13 of the
Act is required to satisfactorily account for the assets
held by him. In the instant case, A 2 was asked to
explain the excess amount of Rs. 75,58,295/-, which
she held for A-1.
246. As stated, initially the IO and the court
while framing charge accepted the agricultural and
rental income of A-2 at Rs. 59,10,300/-. The question
is as to whether the prosecution doubted the
agricultural income of A-2? And, more importantly, the
question is as to whether A-2 was aware that the
prosecution, after initial acceptance of her agricultural
income at Rs. 59,10,300/-, adduced evidence to the
effect that A-2 did not have any agricultural income?
The broad proposition to be answered is as to whether
any prejudice has been caused to A-2 and it resulted
into the failure of justice?
247. There are three certificates with regard to
agricultural income of A-2. They are Ex. A-199, proved
by PW 82 Ramji Singh, Ex. A-348 and Ex. A-349
issued by PW 154 Ashok Kumar Pal and PW 193
Dharmraj Singh, respectively. All these certificate are
most unreliable documents. It has already been held
by this Court.
248. In the instant case, in fact, CBI produced
all the materials collected by it during investigation.
For example, with regard to the valuation of Rajpur
Road house, two reports, one prepared by CBI valuer
and another given by defence, have been produced in
evidence by the CBI. Similarly, with regard to
valuation of Uruvela International Hotel also, two
reports, one procured by CBI and another by the
appellants, have been adduced in evidence. Although,
the prosecution assailed the valuation reports, which
were given by the defence, ultimately, the CBI has left
it to the Court to adjudicate as to which of the reports
is to be accepted.
249. PW 82 Ramji Singh, PW 110 Manmohan
Prasad, PW 152 Pradhumna Pandey, PW 215 Uday
Shankar Singh and PW 240 Chandrashekhar have
stated about Ex. A-199, which is agricultural income
certificate prepared by them.
250. PW 82 Ramji Singh has been cross-
examined by CBI declaring him hostile. In paragraph
14 of his examination, the CBI gave a suggestion to PW
82 Ramji Singh that he prepared forged report, to
which this witness denied. He also denied the
suggestion of the CBI that he prepared report in order
to help A-1 and A-2. The moment, PW 82 Ramji Singh
was declared hostile and cross-examined by the CBI
and given the suggestions assailing the report
submitted by him, it was clear by the prosecution that
the prosecution was not relying on the reports with
regard to agricultural income of A-2, as proved by PW
82 Ramji Singh. PW 82 Ramji Singh has been cross-
examined by the appellants.
251. PW 110 Manmohan Prasad has also been
declared hostile by the prosecution and he has been
cross-examined. In paragraphs 25, 26 and 27 of his
examination, suggestions were given to PW 110
Manmohan Prasad that he prepared forged report.
This witness has denied this suggestion. It has further
been made clear by the prosecution that prosecution
does not rely the report submitted and proved by this
witness. This witness has not been cross-examined by
A-2, although he has been cross-examined on behalf of
other appellants.
252. PW 152 Pradhumna Pandey, has also
stated about the valuation report, Ex. A-202, which is
with regard to details of crops from the year 1996-97
to 2004-05. He has also been declared hostile by the
prosecution and has been cross-examined. In
paragraphs 9 and 11 of his statement, this witness
was suggested that he has prepared the report to save
A-1 and he gave false evidence. This witness PW 152
Pradhumna Pandey also denied these suggestions. He
was cross-examined by the appellants.
253. PW 215 Uday Shankar Singh has stated
about a tubewell. He has not stated anything about
the income of A-2.
254. PW 240 Chandrashekhar has also proved
Ex. A-202 with regard to details of the crops. He has
also been declared hostile by the prosecution and
cross-examined. In paragraphs 10 and 11, PW 240
Chandrashekhar has also been given suggestion that
he prepared forged report to save A-1 and A-2. This
witness denied these suggestions.
255. Apart from it, with regard to agricultural
income of A-2, there are two more witnesses, namely,
PW 154 Ashok Kumar Pal and PW 193 Dharmraj
Singh. This Court has already held that both these
reports are without any basis and unreliable.
256. PW 154 Ashok Kumar Pal and PW 193
Dharmraj Singh both have been declared hostile by the
prosecution and they have been cross-examined. In
paragraphs 8 and 9 of the statement of PW 154 Ashok
Kumar Pal, he was suggested that without any basis,
he issued the certificate and he is giving false evidence.
He denied these suggestions. This witness was cross-
examined by the appellants.
257. PW 193 Dharmraj Singh was given a
suggestion in paragraph 10 of his statement that he
gave report to help A-2. He denied this suggestion.
This witness was also cross-examined by the
appellants.
258. In her examination under Section 313 of
the Code, A-2 was asked about her agricultural
income. She has tried to explain about it.
259. The examination of above witnesses and
their cross-examination by the prosecution,
particularly the suggestions, which were given to them
by the prosecution, clearly indicated during the course
of the trial that the prosecution is not relying on the
income certificates, Ex. A-199, Ex. A-348 and Ex. A-
349. Therefore, it is abundantly clear that during the
course of trial, A-2 was made aware that the
certificates with regard to her agricultural income have
been doubted by the prosecution. The defence cross-
examined the witnesses. A-2 knew as to what is the
issue she is facing. A-2 knew during the course of the
trial that, according to the prosecution, she had no
agricultural income. She defended the case. Therefore,
this Court is of the view that merely because initially
A-2 was not told that the prosecution did not rely on
her agricultural income, will have no effect in the trial
of A-2. No prejudice has been caused to A-2 and it
has not resulted in any failure of justice. The court
below has rightly assessed the agricultural income and
rental income of A-2 at Rs. 4,05,000/-. It does not
warrant any interference.
Other Properties
260. In statement 'C' of A-2 at Sr. No. 2 and 7,
there are other articles recorded. The court below
accepted the case of IO with regard to items at Sr. No.
2 to 6.
261. In statement 'C' at Sr. No. 7 with regard to
the loan taken from S.S. Marya, the IO had recorded it
2.75 lakh but the court below concluded that, in fact,
this amount is Rs. 2.50 lakh. There have been no
objections on this point. The court below has quite in
detail made discussion on it.
262. The following chart reveals as to what was
found by the court below in the statement 'C', and as
to what this court has upheld:
Sr. Description Amount
No. In the Held by Held by
chargesheet court below this Court
1. Agricultural and 59,10,300/- 4,05,000/- 4,05,000/-
rental income
2. Pension and likely 3,95,176/- 3,99,419/- 3,99,419/-
savings
3. Interests 75,032/- 75,032/- 75,032/-
4. Interest on fixed 25,800/- 25,800/- 25,800/-
deposits
5. Dividends 1,41,631/- 1,41,631/- 1,41,631/-
6. Sale proceeds of land 4,000/- 4,000/- 4,000/-
7. Loan from S.S. 2,75,000/- 2,50,000/- 2,50,000/-
Marya
Total 68,26,939/- 13,00,882/- 13,00,82/-
Income from Other Sources
263. On behalf of A-1 and A-2 with regard to
income of A-2, certain objections have been raised,
which are discussed as hereunder:
264. Rental income from Patna is claimed at Rs.
4,06,910/- by A-2, but there is no evidence to it. It is
argued that A-2 has shown it in the income tax return
but the income tax return is no evidence to prove a
fact in a criminal trial. A-2 would have produced
documents as to who paid this amount? How was it
paid? And, where was it deposited? It is not done so.
265. Proceeds from sale of Palio car - Rs.
3,50,000/-. This income cannot be added because PW
250 Surendra Kumar Rohilla, the IO, has stated that
the car was purchased and sold during the check
period, therefore, it has not been considered by him.
According to PW 250 Surendra Kumar Rohilla, even he
was not told by A-2 as to at which price it was
purchased by her (statement of PW 250 at paras 39 &
186).
266. Loan from Ajay Kumar Singh - This
amount cannot be added in the income. There is no
evidence to it that it was loan.
267. Loan from City Bank for Honda City car of
Rs. 3,53,000/-. This amount can also not be added in
the income of A-2 because while assessing her assets
at statement 'B', the bank loan has already been
deducted.
268. Loan from SBI, Dehradun for plot in USHA.
This can also not be added because in statement 'B',
the amount after deducting the loan has been added.
269. Rs. 7,54,600/- for GPF and gratuity of A-
2's late husband. In this regard, reference has been
made to the statement of the IO Surendra Kumar
Rohila recorded in the Miscellaneous, as PW 1
Surendra Kumar Rohilla. In his statement recorded on
5.1.2015, as PW 1, Surendra Kumar Rohila has stated
that, in fact, in the account of A-2, Rs. 2.75 lakh were
deposited on 14.06.2001 and Rs. 39,600/- were also
deposited. The IO has also admitted that in one
account No. 9625 of A-2, Rs. 2 lakh were received by
transfer. The IO has also stated about the other
amount deposited in the account of A-2, namely, Rs.
1,30,000/- deposited on 08.09.2002, Rs. 1,30,000/-
deposited on 20.09.2002. The IO in his statement has
stated that he did not inquire about this amount as to
how it came. He also expressed ignorance as to
whether the amount so received in the account of A-2
is gratuity or GPF of her late husband. Since it is a
specific case of A-2 that this amount was deposited in
her account and IO has not denied as such, therefore,
this Court is of the view that A-2 is entitled to claim
this amount of Rs. 7,54,600/- in her income.
Therefore, this Court is of the view that A-2 should be
given benefit of this total amount of Rs. 7,54,600/-.
Therefore, the total income of A-2 during the check
period is Rs. 20,55,482/-.
Statement 'D' of A-2
270. Statement 'D' is with regard to the
expenditure of A-2. In the chargesheet there are 15
sub heads under this statement 'D' and the total
expenditure has been assessed at Rs. 10,07,877/-. At
Sr. No. 1 of statement 'D', Rs. 1,99,757/- has been
shown as an expenses met by A-2 with regard to
marriage of her son. But, this has not been accepted
by the court below. There has been no argument on
this point. At Sr. No. 6 of it, the electricity charges for
Rajpur Road house has been shown at Rs. 18,075/- in
the chargesheet, but the court below based on
calculation took it at Rs. 12,792/-. It has not also
been objected to. In fact, on behalf of A-2, arguments
have been made that A-2 did not incur any
expenditure with regard to her treatment in Fortis
Hospital. At Sr. No. 4 of statement 'D', Rs. 2,42,053/-
has been shown as expenses of A-2 on her knee
treatment at Fortis Hospital. It is argued that, in fact,
A-2 had gone for treatment with her son Arunabh
Suman and address of A-2 has been recorded in the
hospital record. The amount was not paid by her.
271. A-2 has claimed that she is an independent
lady. She is receiving money from pension. The Court
cannot presume that any other person would have
paid for her treatment. The court below widely
discussed this point and held that it is A-2 herself,
who had paid this amount. The total expenditure was
taken by the court below at Rs. 8,02,999/- against
Rs. 10,07,877/- as claimed by the prosecution. This
Court is of the view that the court below has not
committed any error in assessing the expenses of A-2
during the check period.
272. In view of foregoing discussion, the income
calculation of A-2 is as hereunder:-
i. Income at the end of check period with A-2
(Statement 'B') - Rs. 1,38,05,478/-
ii. Income at the beginning of check period
with A-2 (Statement 'A') - Rs. 6,81,869/-
iii. Property acquired by A-2 during check
period (statement 'B'-'A')- Rs. 1,31,23,609/-
iv. Expenditure during check period of A-2
(Statement 'D') - Rs. 8,02,999/-
v. Total assets and expenditure of A-2 during
check period (Statement 'B'-'A'+'D') -Rs.
1,39,26,608/-
vi. Income of A-2 during check period
(Statement 'C') - Rs. 20,55,482/-
vii. Disproportionate assets at the hands of A-2
- Rs. 1,18,71,126/-
PROPERTIES
Flat No. B-122, Panchvati Apartment in
Sector 62, Noida
273. Flat No. B-122, Panchvati Apartment in
Sector 62, Noida ("the Flat") has been purchased in the
name of A-4 in the month of August, 2002. According
to the prosecution case, A-1 purchased the flat in the
name of A-4. Accordingly, A-1 and A-4 have been
charged. The court below has accepted the prosecution
case.
Arguments
274. On behalf of A-4 arguments have been
advanced that it is A-4 who purchased it from its
lawful owner. A-4 had source of income to purchase
the flat. His father had purchased shares and received
draft in connection with those shares. It is also argued
that, in fact, the prosecution has not been able to
prove that the money of A-1 was used to purchase the
flat. On behalf of A-4, learned Senior Counsel raised
the following points on this aspect:-
(i) A-4 in his examination under Section
313 of the Code has stated that his
father Abhay Kumar Singh sold 12100
shares of Mini Soft Company to the
Director of SJ Capitals and he made a
draft of Rs. 9.75 lakh in favour of Dalip
Kumar for the purchase of the flat.
(ii) The IO has admitted that sale proceeds
of said shares were shown in the ITR of
A-4.
(iii) PW 102 Rajeev Mittal did not support the
prosecution case.
(iv) The flat of A-4 was under his ownership
and possession.
275. On behalf of A-1, the findings of the court
below with regard to the flat has been assailed on the
ground that the observations made by the court below
are based on suspicion, conjectures and speculations
only. The following points have also been raised on
behalf of A-1:-
(i) PW 202 Dharmendra Gupta did not
support the prosecution case.
(ii) PW 86 Anil Jindal did not name A-1. The
source of income of A-4 cannot be seen
or examined.
(iii) The power of attorney, which A-4
allegedly gave to Arunabh Suman is not
a power of attorney, as it is not
registered.
(iv) The flat was let out to Arunabh Suman,
through property dealer PW 164 Sanjay
Kumar Jain. The power of attorney was
given on the suggestion of Sanjay Kumar
Jain so that Arunabh Suman can do
anything for maintenance and repair of
the flat.
(v) The observation that A-1 misplaced the
ITR of A-4 is without any basis.
(vi) A-4 had no financial connection with A-
1. So, the flat of A-4 cannot be treated as
benami of A-1.
(vii) A-4 always remained in control and
possession of the flat.
276. Learned Special Counsel for the CBI would
submit that A-1 used the name of A-4 for purchasing
the flat. A-1 provided money to CAs for arranging the
draft. There is no proof that Rs. 10 lakh was arranged
by A-4 for procuring the draft. The chain of CA's
involved in preparing the draft originates in Dehradun.
A-1 had close links with A-4 in many ways. The flat
was possessed by Arunabh Suman with full rights.
Discussion
277. This Court has already concluded that in
the cases under the Act, when the public servants are
prosecuted together with the non public servants, the
source of income is most important determining factor.
In cases where the property is purchased in the name
of a non public servant, the source of income of such
non public servants also require to be examined by the
court.
Ownership of the flat and its transfer
278. According to the prosecution, PW 164
Sanjay Kumar Jain was instrumental in purchase of
the flat. PW 164 Sanjay Kumar Jain knew A-1 as well
as his brother Arunabh Suman. It may be noted here
that it is PW 164, Sanjay Kumar Jain who was
instrumental in purchase of a plot at Noida in the
name of A-2. Is it a co-incidence or a design? The
Court is examining this aspect also.
279. According to PW 164 Sanjay Kumar Jain,
A-4 approached him in the year 2002-03 and he
referred him to a Buniyadi Property Dealer, from where
the plot was purchased. PW 236 is Subhashish
Chakravarti, who was working as Buniyad Real Estate
at Noida at the relevant time. According to him, A-4
was referred to him by PW 164 Sanjay Kumar Jain.
This witness introduced A-4 to the owner of the flat
PW 175 Dalip Kumar and the deal was done. This
witness has proved the documents.
280. PW 175 Dalip Kumar is the owner of the
flat. He has supported the statement of PW 236
Subhashish Chakravarti. According to him, in the year
2002, he sold the flat to A-4 for Rs. 10.25 lakhs. Out of
sale proceeds, Rs. 50,000/- was received in cash and
Rs. 9.75 lakh was by a bank draft. This witness also
proved the agreement and other documents. In fact,
the flat was in a society and PW 175 Dalip Kumar had
to inform the society also.
281. PW 174 Deepak Mehta was the Secretary of
the society. He has also corroborated the statement of
PW 175 Dalip Kumar. The documents Ex. A-409 and
410 reveal that on 21.08.2002, PW 175 informed the
society that he had sold the flat to A-4 and received
the money. Ex. A-409 is the communication of PW 175
Dalip Kumar to the Secretary PW 174 Deepak Mehta.
It is dated 21.08.2002. It records that the vendor had
received the full and final payment.
282. How consideration was paid? PW175 Dalip
Kumar has stated that he received Rs. 50,000/- in
cash and Rs. 9.75 lakh by way of bank draft. A-4 has
his account in Oriental Bank of Commerce, Dehradun.
283. PW 20 Vijay Keerti and PW 43 Vivek
Pokhariyal have stated about the bank details of A-4.
The account details have been given by the bank
officials, which is Ex. A-42. It reveals that on
24.08.2002, Rs. 9,75,877/- were deposited in the
account of A-4 by clearance and the draft for Rs. 9.75
lakh was prepared on 27.08.2002. It may be noted
here only that according to the communication given
by PW 175 Dalip Kumar to the Secretary of the society
PW 174 Deepak Mehta (Ex. A-409), on 21.08.2002 the
vendor had received the full and final payment. How
was it so, when the draft itself was prepared on
27.08.2002? The Court leaves it at it.
284. In his examination under Section 313 of
the Code, in answer to question no. 10, A-4 has
admitted that he had prepared the bank draft for Rs.
9.75 lakh on 27.08.2002. In answer to question no. 7,
A-4 has stated that the draft for Rs. 9,75,877/- was
received by his father by sale of some shares.
285. It is proved by the prosecution that in the
account maintained by A-4, with the Oriental Bank of
Commerce, Dehradun, on 24.08.2002 Rs. 9,75,877/-
was deposited by clearance and from this account
alone a draft of Rs. 9.75 lakh was prepared on
27.08.2002. How A-4 got this money?
286. It is the case of the prosecution that A-1
has been instrumental in preparing the demand draft
of Rs. 9,75,877/- through Chartered Accountants in
the name of A-4. It is A-1 alone, who got an account of
A-4 opened for the purpose of purchase of the flat. The
draft so prepared was deposited in the account of A-4
and thereafter another draft of Rs. 9.75 lakh was
prepared in the name of PW 175 Dalip Kumar as
consideration for the flat.
287. The chain of witnesses is quite long. It
begins with PW 102 Rajeev Mittal. He admits that he
knows A-1.
288. PW 202 Dharmendra Kumar Gupta has
stated that he knew PW 102 Rajeev Mital, a Chartered
Accountant in Dehradun. According to PW 202
Dharmendara Kumar Gupta, in the year 2002, he was
telephonically contacted by PW 102 Rajeev Mittal and
on his request, this witness revealed the telephone
number of PW 86 Anil Jindal to him, who was also a
Chartered Accountant in Delhi. In fact, PW 202
Dharmendra Kumar Gupta has not supported the
prosecution case beyond it and he was cross-examined
by the CBI.
289. PW 86 Anil Jindal, PW 87 Akhil Mahajan
and PW 123 Mahesh Garg are important witnesses,
who have proved as to how the draft for Rs. 9,75,877/-
was prepared in the name of A-4.
290. According to PW 86 Anil Jindal, he was
telephonically contacted by PW 202 Dharmendra
Kumar Gupta with the request that he needs a draft of
Rs. 10 lakh through cash. Thereafter, this witness
inquired from PW 87 Akhil Mahajan and told it to PW
202 Dharmendra Kumar Gupta that draft can be
prepared. PW 202 Dharmendra Kumar Gupta gave Rs.
10 lakh to this witness. Thereafter this witness gave
Rs. 10 lakh to PW 87Akhil Mahajan. PW 87 Akhil
Mahajan gave a draft in the name of A-4. This witness
has also spoken about the draft on record.
291. It may be noted that PW 202 Dharmendra
Kumar Gupta did not say that he gave Rs. 10 lakh to
PW 86 Anil Jindal, but the fact remains that PW 202
Dharmendra Kumar Gupta has spoken about the
telephone call, which he received from PW 102 Rajeev
Mittal, a Chartered Accountant in Dehradun to whom
he gave telephone number of PW 86 Anil Jindal.
292. PW 87 Akhil Mahajan has supported the
statement of PW 86 Anil Jindal. According to him, PW
123 Mahesh Garg used to prepare draft on cash. This
witness was approached by PW 86 Anil Jindal to
prepare a draft in the name of A-4, which he prepared
through PW 123 Mahesh Garg. This witness has also
stated that he received Rs. 10,000,00/- in cash
through PW 86 Anil Jindal. He also proved the
documents.
293. PW 123 Mahesh Garg is the person, who
prepared the draft. He has supported the statement of
PW 86 Anil Jindal and PW 87 Akhil Mahajan. He took
the money from PW 87 Akhil Mahajan and prepared a
draft of Rs. 9,75,877/- in the name of A-4. This
witness has proved the voucher Ex. A-301, which he
filled up to prepare the draft and also proved his bank
statement. The statements of PW 86 Anil Jindal, PW
87 Akhil Mahajan and PW 123 Mahesh Garg proved
the prosecution case. It is PW 202 Dharmendra Kumar
Gupta, who gave money for preparing the draft in the
name of A-4.Why Dharmendra Kumar Gupta did so,
he has revealed that he was contacted by PW 102
Rajeev Mittal, who is a Chartered Accountant in
Dehradun. He knows A-1.
294. The Court has to make inferences now. The
Court has not based its opinion on the basis of any
conjecture or surmises. In fact, PW 123 Mahesh Garg
has also stated that he had given a cheque for
preparing a draft and on the back of the cheque he
mentioned the name of A-4 and PW 87 Akhil Mahajan.
There is no doubt that A-4 was nowhere in picture for
preparing the bank draft of Rs. 9,75,877/-. It was
prepared by a chain of Chartered Accountants. At the
core of it was PW 102 Rajeev Mittal, who knew A-1. Is
it enough to connect A-1 with that draft? Perhaps this
fact alone is not enough. The Court proceeds to
examine the other circumstances.
295. Did A-4 ever know A-1? PW 132 Santosh
Deep had been working as a domestic help with A-1.
He has not fully supported the prosecution case.He
was cross-examined by the CBI.He has stated that he
knew A-4 as well as his father Abhay Kumar Singh. In
fact, PW 132 Santosh was a witness to sale deed
executed by the father of A-4. In para 11 of his
statement, PW 132 Santosh Deep has categorically
stated that A-4 used to visit Income Tax Department.
Why did A-4 use to visit Income Tax Department?
What was his connection? Is he connected with A-1?
Was he very close to A-1?
296. A land was purchased in Rajpur Road,
Dehradun in the name of A-2. A house was
constructed on it. It is the prosecution case that the
house was constructed by A-1 in the name of A-2. Who
constructed the house? How the materials were
purchased? PW 69 Sunil Goyal is the owner of a
hardware shop. According to him, A-1 had contacted
him and asked him that some of his acquaintance
would take building material. Thereafter, according to
PW 69 Sunil Goyal, Mr. Marya had approached and
took building material from him. This witness PW 69
Sunil Goyal did not support the prosecution case in
full initially, but in his cross-examination by the CBI,
when he was confronted with the documents taken
from his possession during investigation, he has
admitted that A-4 also collected articles from his shop.
297. On behalf of A-1, it is argued that a signed
statement of a witness given to the IO during
investigation is inadmissible in view of Section 162 of
the Code. This has broadly been referred to in context
with the observation of the court below when Ex. A-
120 proved by PW 69 Sunil Goyal has been read into
evidence. Ex. A-120 is a communication made by PW
69 Sunil Goyal to the IO during investigation. It is
quite in detail. Along with this communication, certain
documents were also handed over to the IO by PW 69
Sunil Goyal, but certain statements are also contained
in this annexure A-120.
298. In support of his submission, learned
Senior Counsel for A-1 has referred to the principle of
law as laid down in the cases of Tori Singh and
another v. State of Uttar Pradesh, AIR 1962 SC 399;
Jagdish Narain and another v. State of U.P. (1996) 8
SCC 199; Public Interest Foundation and others v.
Union of India and another, (2019) 3 SCC 224 and
Girish Kumar Suneja v. Central Bureau of
Investigation, (2017) 14 SCC 809.
299. Before proceeding further, it would be apt
to reproduce Section 162 of the Code. It is as
hereunder:-
"162. Statements to police not to be
signed: Use of statements in evidence.--(1)
No statement made by any person to a police
officer in the course of an investigation under
this Chapter, shall, if reduced to writing, be
signed by the person making it; nor shall any
such statement or any record thereof, whether
in a police diary or otherwise, or any part of
such statement or record, be used for any
purpose, save as hereinafter provided, at any
inquiry or trial in respect of any offence under
investigation at the time when such statement
was made:
Provided that when any witness is called
for the prosecution in such inquiry or trial
whose statement has been reduced into writing
as aforesaid, any part of his statement, if duly
proved, may be used by the accused, and with
the permission of the Court, by the
prosecution, to contradict such witness in the
manner provided by section 145 of the Indian
Evidence Act , 1872 (1 of 1872); and when any
part of such statement is so used, any part
thereof may also be used in the re-examination
of such witness, but for the purpose only of
explaining any matter referred to in his cross-
examination.
(2) Nothing in this section shall be
deemed to apply to any statement falling within
the provisions of clause (1) of section 32 of the
Indian Evidence Act, 1872 (1 of 1872); or to
affect the provisions of section 27 of that Act.
Explanation.--An omission to state a fact
or circumstance in the statement referred to in
sub-section (1) may amount to contradiction if
the same appears to be significant and
otherwise relevant having regard to the context
in which such omission occurs and whether
any omission amounts to a contradiction in the
particular context shall be a question of fact."
300. A bare perusal of Section 162 of the Code
makes it abundantly clear that any statement given to
the IO during investigation shall not be signed by the
person making it. Proviso to Section 162 of the Code
prescribes for use of statement recorded by the IO
during investigation.
301. In the case of Tori Singh (supra), the
Hon'ble Supreme Court neatly interpreted the
provision of Section 162 of the Code as hereunder:-
"8. This Court had occasion to consider the
admissibility of a plan drawn to scale by a
draftsman in which after ascertaining from the
witnesses where exactly the assailants and the
victims stood at the time of the commission of
offence, the draftsman put down the places in
the map, in Santa Singh v. State of Punjab [AIR
1956 S.C. 526] . It was held that such a plan
drawn to scale was admissible if the witnesses
corroborated the statement of the draftsman
that they showed him the places and would not
be hit by Section 162 of the Code of Criminal
Procedure. In that case there was another
sketch prepared by the Sub-Inspector which
was ruled out as inadmissible under Section
162. The sketch-map in the present case has
been prepared by the Sub-Inspector and the
place where the deceased was hit and also the
places where the witnesses were at the time of
the incident were obviously marked by him on
the map on the basis of the statements made to
him by the witnesses. In the circumstances
these marks on the map based on the
statements made to the Sub-Inspector are
inadmissible under Section 162 of the Code of
Criminal Procedure and cannot be used to
found any argument as to the improbability of
the deceased being hit on that part of the body
where he was actually injured, if he was
standing at the spot marked on the sketch-
map."
302. In the case of Jagdish Narain (supra), the
principle of law as laid down in the case of Tori Singh
(supra) has been followed.
303. In the case of Girish Kumar Suneja (supra),
in fact, the Hon'ble Supreme Court discussed the
provisions of appeal, revision, Article 226 and Article
227 of the Constitution of India. In the case of Public
Interest Foundation (supra), the Hon'ble Supreme
Court dealt with the provisions of election.
304. How a statement recorded during
investigation can be used during trial, it has been
discussed quite in detail by the Hon'ble Supreme
Court in the case of Tahsildar Singh and another v.
State of U.P., AIR 1959 SC 1012.
305. In the case of Tahsildar Singh (supra), the
Hon'ble Supreme Court discussed the object of the
legislature in enacting these provisions. The Hon'ble
Supreme Court referred to the judgment in the case of
Emperor v. Aftab Mohd. Khan, AIR 1940 Allahabad
291 and in para 12 observed as hereunder:-
"12. Braund, J. in Emperor v. Aftab Mohd.
Khan [AIR (1940) All 291] gave the purpose of
Section 162 thus at p. 299:
"As it seems to us it is to protect accused
persons from being prejudiced by statements
made to police officers who by reason of the
fact that an investigation is known to be on foot
at the time the statement is made, may be in a
position to influence the maker of it and, on the
other hand, to protect accused persons from
the prejudice at the hands of persons who in
the knowledge that an investigation has already
started, are prepared to tell untruths."
A Division Bench of the Nagpur High Court
in Baliram Tikaram Marathe v. Emperor [AIR (1945) Nag
1] expressed a similar idea in regard to the object
underlying the section, at p. 5, thus:
"The object of the section is to protect the
accused both against overzealous police officers
and untruthful witnesses."
The Judicial Committee in Pakala Narayana
Swami v. King Emperor [(1939) LR 66 IA 66] found another
object underlying the section when they said at p. 78:
"If one had to guess at the intention of the
legislature in framing a section in the words
used, one would suppose that they had in mind
to encourage the free disclosure of information
or to protect the person making the statement
from a supposed unreliability of police
testimony as to alleged statements or both."
Section 162 with its proviso, if construed in the
manner which we will indicate at the later stage of the
judgment, clearly achieves the said objects."
306. In the case of Aftab Mohd. Khan (supra), it
has categorically been observed that the statement
made during investigation to the IO may be used to a
certain extent so as to protect the interest of the
accused. It has been observed that a police officer may
be in a position to influence the maker of a statement.
Perhaps it is with this in mind, Section 162 of the
Code provides that the statement made during
investigation by a witness to the IO shall not be
signed.
307. PW 69 Sunil Goyal has stated that during
investigation, he made a communication to the IO
along with which he gave certain documents to the IO.
This communication is Ex. A-120. If during
investigation, an IO takes into custody certain
documents from a witness and prepares a seizure
memo, to that extent the seizure memo may be proved
and read into evidence. But, if the seizure memo also
records some statement of a witness and signed by
such witness, such statement cannot be read into
evidence. It is inadmissible. It cannot be looked into. It
is against the intent of the legislature. In Ex. A-120
there are certain statements given by PW 69 Sunil
Goyal to the IO. It is particularly recoded in the last
page of this document. (This document runs in three
pages). Therefore, the statement of PW 69 Sunil Goyal
as contained in Ex. A-120 may not be read into
evidence for any purpose whatsoever.
308. It may be noted that PW 69 Sunil Goyal
has not supported the prosecution case in full. He was
cross-examined by the CBI. As stated hereinbefore,
along with his communication Ex. A-120, PW 69 Sunil
Goyal has also given certain documents to the IO.
These documents have also been proved by PW 69
Sunil Goyal in his evidence. They are Ex. A-122 to Ex.
A-128. These are basically bills and vouchers of the
goods, which were supplied from his shop. They are in
the name of A-1. These exhibits are dated 05.04.2004,
07.04.2004, 19.04.2004, 24.04.2004, 04.05.2004,
01.01.2005 and 15.01.2005, respectively. These
documents can definitely be read into evidence. They
are not hit with the provision of Section 162 of the
Code.
309. PW 69 Sunil Goyal has, at various places,
told that he had demanded money from Mr. Marya and
Rajendra (Paragraphs 9 and 21 specifically). This
witness has stated that A-4 used to come along with
Mr. Marya to collect the goods. He did not remember
as to how many times A-4 had visited his shop. In his
statement at Para 21, PW 69 Sunil Goyal has
categorically stated that he had demanded money from
A-4. He had given goods to A-4 under assumption that
he was taking it for A-1.
310. In all these bills and vouchers, the name of
A-1 is recorded. Not only this, in fact, in Ex. A-125 and
Ex. A-127, the address of Rajpur Road house has also
been written. It is pertinent to record here that it is the
prosecution case that at the relevant time, A-1 was
constructing a house at 169/21 Rajpur Road,
Dehradun. It connects A-1 with these purchase. It
connects the link between A-1 and A-4. PW 69 Sunil
Goyal has stated that A-4 had collected goods from his
shop. The prosecution has further proved it. Some of
the vouchers have the signature of A-4. Particularly,
Ex. A-122 has signature of A-4. They have been
marked by PW 165 P. Venugopal Rao with the
letter/figure "Q 179" and "Q 180". According to
forensic report Ex. A-362, these signatures on Ex. A-
122 are that of A-4. The prosecution has conclusively
established that A-4 was taking building materials
from the shop of PW 69 Sunil Goyal for the house,
which was being constructed by A-1. The vouchers
bear signature of A-4.
311. PW 69 Sunil Goyal has also proved his
statement recorded under Section 164 of the Code. On
behalf of A-1, it is argued that statement of a hostile
witness under Section 164 of the Code, even if proved
by the author, cannot be used as a substantive
evidence. In support of his contention, learned
counsel for A-1 has referred to the principle of law as
laid down in the case of Audumbar Digambar Jagdane
v. State of Maharashtra, 1999 Cri LJ 1936.
312. In the case of Audumbar Digambar
Jagdane (supra), the Hon'ble Bombay High Court
discussed the evidentiary value of a statement of a
witness recorded under Section 164 of the Code, who
during trial did not support the prosecution case. The
Hon'ble Court held as hereunder:-
"12. ....... In our opinion once Narayan has not
supported the prosecution, the statement given
under 164, even if proved, can never be
accepted as substantive evidence. In that
behalf reference to the decision of the Privy
Council reported in AIR 1946 PC 38 : (1946
(47) Cri LJ 336) is extremely fruitful. The
Committee of the Privy Council speaking
through Sir John Beaumont, J. in the aforesaid
decision on page 41 (of AIR) : (atp. 338 of Cri
LJ) of the report has observed as under:
".........The learned Judges
discussed in great detail the statements
made by Haliman and Mahabir under S.
164 and gave reasons for accepting the
fagts, or most of the facts, deposed to in
those statements, in preference to the
evidence given by the witnesses in Court,
which in no way helped the prosecution.
This was an improper use of such
statements. A statement under S. 164
can be used to cross-examine the person
who made it, and the result may be to
show that the evidence of the witness is
false. But that does not establish that
what he stated out of Court under S. 164
is true."
313. The statement recorded under Section 164
of the Code can be used for the purposes of
corroborations as well as for contradictions. In the
case of R. Shaji v. State of Kerala, (2013) 14 SCC 266,
the Hon'ble Supreme Court discussed the evidentiary
value of statement given under Section 164 of the
Code and observed as hereunder:-
"26. Evidence given in a court
under oath has great sanctity, which is
why the same is called substantive
evidence. Statements under Section 161
CrPC can be used only for the purpose of
contradiction and statements under
Section 164 CrPC can be used for both
corroboration and contradiction. In a case
where the Magistrate has to perform the
duty of recording a statement under
Section 164 CrPC, he is under an
obligation to elicit all information which
the witness wishes to disclose, as a
witness who may be an illiterate, rustic
villager may not be aware of the purpose
for which he has been brought, and what
he must disclose in his statements under
Section 164 CrPC. Hence, the Magistrate
should ask the witness explanatory
questions and obtain all possible
information in relation to the said case.
29. During the investigation, the
police officer may sometimes feel that it is
expedient to record the statement of a
witness under Section 164 CrPC. This
usually happens when the witnesses to a
crime are clearly connected to the
accused, or where the accused is very
influential, owing to which the witnesses
may be influenced.
LW 138 : AIR 1946 PC 45]
, BhuboniSahu v. R. [(1948-49) 76 IA 147
: AIR 1949 PC 257] , Ram Charan v. State
of U.P. [AIR 1968 SC 1270 : 1968 Cri LJ
1473] and Dhanabal v. State of
T.N. [(1980) 2 SCC 84 : 1980 SCC (Cri)
340 : AIR 1980 SC 628])"
314. The statements of PW 69 Sunil Goyal
recorded under Section 164 of the Code are Ex.A-129.
PW69 did not deny his statement given under Section
164 of the Code. In court also, he has categorically
stated that A-4 took material from his shop along with
Mr. Marya. PW 69 Sunil Goyal has proved the
vouchers Ex. A-122 to Ex. A-128. He told it during
examination under Section 164 of the Code that A-1
introduced him to A-4 and Mr. Marya. The vouchers by
which building material was taken by A-4 for A-1 were
sent for forensic examination. PW 165 P.Venugopal
Rao has proved that in the vouchers there are
signatures of A-4. It is A-4, who was taking material
for construction of the house of A-1 from the shop of
PW 69 Sunil Goyal. A-4 has very close relations with
A-1. A-4 was closely associated with aiding A-1.
315. There is another aspect of the matter. A-4
did file income tax return for the year 2003-04, but
they were not traceable in the income tax department.
PW 70 Kambar Murtaza and PW 78 Shashi Prabha
have categorically stated that it is A-1 who gave the
income tax return of A-4 to PW 17 Kambar Murtaza
and after obtaining receipt of it, A-1 took the returns
back and did not submit further to the department.
316. PW 132 Santosh Deep has stated that A-4
used to visit in the income tax department. The
prosecution has proved beyond reasonable doubt that
A-4 was taking building materials from the shop of PW
69 Sunil Goyal for the house that was being
constructed by A-1 at Rajpur Road, Dehradun. The
vouchers bear the signature of A-4. The income tax
return of 2003-04 of A-4 was given to PW 70 Kambar
Murtaza by A-1 and after obtaining receipt, the ITR
was taken back by A-1. A-1 never gave the ITR of A-4
back to the income tax department. In fact, the
prosecution has also alleged that the income tax
return of the father of A-4 was also taken back by A-1.
It is also the prosecution case that certain properties
were also purchased by A-1 in the name of father of A-
4, Abhay Kumar Singh.
317. The bank draft of Rs. 9,75,877/- was
prepared by PW 123 Mahesh Garg at the instance of
various Chartered Accountants and it originates from
PW 102 Rajeev Mittal, an acquaintance of A-1. A-4 had
been nowhere in the picture for preparing the bank
draft by PW 123. A-4 has been in much close relations
with A-1. He was assisting A-1 in construction of the
house by A-1 at Rajpur Road, Dehradun. The ITR of A-
4 was submitted and taken back by A-1. These
circumstances establish close proximity between A-4
and A-1. There are other circumstances also. They
need to be examined.
318. According to A-4, his father had sold some
shares to Sanjay Jain and in return thereof, draft of
Rs. 9.75 was given. This has been proved false by the
statement of PW 86 Anil Jindal, PW 87 Akhil Mahajan
and PW 123 Mahesh Garg because the draft was not
prepared by sale of any shares. But, even otherwise as
per PW 194 Suresh Kumar Adya, the Managing
Director of Mini Soft Limited Company, on 14.05.2001,
12100 shares of his company were transferred in the
name of A-4 at the cost of Rs. 10 per share. This
witness has proved those certificates. According to this
witness, till 29.11.2006, the shares were in the nameof
A-4. It also falsifies the statement of A-4 that by sale
of shares he received some money in the year 2002
because the shares were in his name till 2006.
According to PW 194, Suresh Kumar Adya, the value
of shares never rose. In fact, according to this witness,
in the year 2006, it came below Re. 1 per share. There
is no question of getting a draft of Rs. 9.75 lakh by
sale of such shares. The statement given by A-4 is
false. A-4 did not have the source of income to
purchase the flat.
319. A-4 was working in the education
department at the relevant time. PW 124 Sri Naveen
Chandra Kabadwal has stated about his salary. The
court below has observed that even the entire salary of
A-4 was not enough to purchase the flat. A-4 did not
inform the department when he purchased the flat. He
informed it much later. Why?
Possession of flat
320. The flat was never been in the possession
of A-4. A search was conducted on 05.08.2005 of the
flat. PW 209, S.K. Sharma and PW 252 S.S. Kishore
were part of search team. They have proved the
inventory as well as the power of attorney also (Ex. A-
485 and Ex. 486). At the time of search on 05.08.2005,
Arunabh Suman, the younger brother of A-1 was
found occupying the flat. It is A-1's possession, not A-
4's possession. When A-4 was asked about the
possession of the flat by Arunabh Suman, in answer to
question no. 18, in examination under Section 313 of
the Code, A-4 would submit that he had given the flat
on rent through a broker and he did not know as to
who was residing in the flat. But, Arunabh Suman was
staying there when search was made on 5.8.2005. In
answer to Question No. 20, A-4 has stated that he did
not execute any power of attorney in favour of
Arunabh Suman.
321. During the course of arguments, on behalf
of A-4, it is argued that Ex. A-486 is not a power of
attorney as such because it has no date or witness
(es). It is argued that, in fact, in order to run day to
day business of the society, A-4 had authorized
Arunabh Suman and therefore the document was
written. This is a false explanation. Ex. A-486 reveals
that A-4 had allegedly authorized Arunabh Suman to
act on his behalf in respect of everything relating to
the flat. In his examination under Section 313 of the
Code, A-4 denied of having executed any power of
attorney, but forensic examination report confirms
that it has been signed by A-4. A-4 executed the power
of attorney in favour of Arunabh Suman, the younger
brother of A-1.
322. A-4 did not have any source of income to
purchase the flat. The source of income, which A-4
tries to reveal is false. He did not sell any share. His
father did not sell any share. The shares, which were
in the name of A-4 remained in his name till 2006.
They were 12100 in number of Rs. 10 each when
purchased, but subsequently the value of the share
reduced to Re. 1 per share. A-4 did not have enough
salary for purchasing the flat. A-4 did not inform the
education department about the purchase of the flat. A
draft of Rs. 9,75,877/- was prepared by A-1 through
many Chartered Accountants, which was finally
prepared by PW 123 Mahesh Garg. A-4 had no role in
preparing the bank draft but this bank draft was
deposited in the account of A-4. A-4 was having very
close relations with A-1. He was regular visitor of A-1.
A-4 was assisting A-1 in construction of house at
Rajpur Road. A-4 was collecting material, as stated by
PW 69 Sunil Goyal. These all circumstances lead to
one and only conclusion that the flat was purchased
by the money provided by A-1. The flat was in the
name of A-4, but, in fact, it was purchased by A-1. It is
Benami property of A-1. The court below has rightly
drawn its conclusion on this aspect. The finding does
not warrant any interference.
HOUSE AND PLOT NO. 169/21, RAJPUR ROAD,
DEHRADUN
323. The land on which Rajpur Road House is
situated was purchased in the name of A-2 for Rs. 3
lakh. The cost of the house has already been examined
by this Court in this judgement. The court has
concluded that the house was constructed at the cost
of Rs. 79,75,606/-. The valuation report as given by
PW 66 Rajendra Singh has been accepted by this
Court. It is also the prosecution case that, in fact, the
house was not constructed by A-2. A-2 is only a face,
but it was constructed by A-1 from the income which
he derived illegally. The court below accepted the
prosecution case and held that the Rajpur Road house
is a benami property of A-1, which A-1 acquired in the
name of A-2.
Arguments
324. On behalf of A-1, it is argued that Rajpur
Road house belongs to A-2. The following points have
been raised by the learned Senior Counsel for A-1 on
this aspect:-
i. There is no financial link between
A-1 and A-2.
ii. Dehradun Municipality records A-2
as the owner of Rajpur Road house.
iii. A-2 has shown the house in her ITR
along with the valuation report.
iv. The IO was aware of the valuation
report prepared by PW 153 A.S.
Gupta, but he did not consider it.
v. A-2 had sent representation to the
IO regarding her assets during
investigation.
vi. A-2 had told it to the IO that she got
the house constructed with the help
of a family friend Ranvir Singh and
the cost was shown in her balance
sheet, attached with the ITR.
vii. PW 4 Pramod S/o Ranvir Singh has
stated that his father helped A-2 in
building the Rajpur Road house.
viii. Mutation of house is in the name of
A-2.
325. Learned Senior Counsel for A-1 would
challenge the finding rendered by the court below, on
this aspect, as below:-
i. The observation that A-1 played role
in purchase of the plot and fixation
of its case is not based on facts on
record.
ii. It is wrong to say that A-1
purchased material for construction
of the Rajpur Road house and
payment of it was not made.
iii. Ex. A-120 is signed statement of PW
69 Sunil Goyal, which is not
admissible in evidence in view of
Section 162 of the Code.
iv. The court below appears absolutely
biased and prejudiced because it
tried to implicate A-1 at the cost of
settled legal principle.
v. Prosecution case can raise
suspicion, but suspicion cannot be
a reason for conviction.
vi. The observations that PW 99
Rakesh Sharma and PW 138 Ashok
Kumar Singh have been won over
by the defence is against the weight
of evidence.
326. Learned Counsel for A-2 would submit that
there is not a single evidence on record to prove any
financial connection between A-1 and A-2. A-2 claimed
ownership, control and possession of all her assets,
therefore, the entire case of prosecution automatically
crushes.
327. On the other hand, the learned counsel for
the CBI would submit that it is A-1, who got the house
constructed. A-1 has been instrumental. He purchased
the property. He got his house constructed through his
associates. He bought the building material. It is he,
who through PW 128 S.S. Marya wanted to lease out
the house. A-2 was nowhere associated. Rajpur Road
house was benamiproperty of A-1. The court below has
rightly concluded so.
Discussion
328. There are two persons, who are also related
to the transactions with regard to Rajpur Road house.
They are PW 19 Ashok Kashyap, PW 128 S.S. Marya.
329. PW 19 Ashok Kashyap has been neighbour
of A-1. It has been stated by PW 114 R.P. Ishwaran.
According to R.P. Ishwaran, A-1 and Ashok Kashyap
were very close. PW 114 R.P. Ishwaran was also their
neighbour.
330. PW 54 Jitendra Singh Tadiyal has stated
that he leased out one of his houses to A-2 at the
behest of Ashok Kashyap. PW 54 Jitendra Singh
Tadiyal has proved the agreement. PW 19 Ashok
Kashyap was instrumental to get the house available
to A-1 through PW 54 Jitendra Singh Tadiyal. PW19
Ashok Kashyap is also a witness to the sale deed
executed in favour of A-2 by PW 207 Vivek Kumar.
331. PW 58 Awdhesh Kumar has categorically
stated thatPW 128 S.S. Marya had called him and
introduced him to A-1, who wanted to purchase a
property and sale deed was prepared in the presence of
PW 19 Ashok Kashyap. In his examination PW 19
Ashok Kashyap has admitted that his firm had issued
the property certificate to A-2 (It is part of Ex. A-118).
332. PW 6 I.K. Batta and PW 58 Awdhesh
Kumar have levelled various allegations against A-1.
PW 6 I.K. Batta is also a Chartered Accountant.
According to him, some illegal demand was made by A-
1 from him, which he declined. Thereafter, his client
Ramesh Batta, who is PW 88, was called by A-1.
Thereafter PW 88 Ramesh Batta changed his CA and
appointed PW 19, Ashok Kashyap, CA. PW 6 I.K. Batta
has categorically stated thatafter PW 88 Ramesh
Batta met A-1, he revealed it to him that A-1 wanted
that PW 88 Ramesh Batta should appoint Ashok
Kashyap as his CA, which he did. PW 88 Ramesh
Batta did not support the prosecution case fully, but
in his cross-examination, he has admitted that I.K.
Batta was his CA, which he changed and appointed
Ashok Kashyap Company as CA.
333. These all circumstances connect Ashok
Kashyap with the purchase of land for Rajpur Road
house. It connects A-1 with Ashok Kashyap and
thereafter PW 58 Awdhesh Kumar and PW 207 Vivek
Kumar, who finally executed the sale deed. It connects
the whole chain that PW 19 Ashok Kashyap was in the
close association with A-1.
334. There is another person who is PW 128
Shivdev Singh Marya. He was also instrumental in the
purchase of the property. This person had called PW
58 Awdhesh Kumar and introduced him to A-1. PW 58
Awdhesh Kumar has categorically stated about it. PW
128 Shivdev Singh Marya was present when the sale
deed was executed. It has been stated by the
witnesses.
335. PW 69 Sunil Goyal and PW 88 Ramesh
Batta have stated that material for building was taken
for A-1 by PW 128 Mr. Marya. PW 50 Arun Kumar
Sharma has stated that it is PW 128 Shivdev Singh
Marya, who approached the ONGC that the house
constructed in the name of A-2 be taken on rent by the
ONGC for guest house. PW 50 Arun Kumar Sharma in
quite detail has stated that A-1 had pressurized the
ONGC officers and called this witness also so that the
house constructed in the name of A-2 be taken on rent
by the ONGC.
336. PW 128 Shivdev Singh Marya has admitted
that his name plate was placed at the outer gate of
Rajpur Road house. Even if PW 128 Shivdev Singh
Marya had taken a portion of the Rajpur Road house
on rent, how could he place his name plate on whole of
the premises? There was no name plate of either A-2
or A-1. Had it been a design framed by A-1 to conceal
the presence of real owner i.e. A-1? The circumstances
reply it in AFFIRMATIVE. Although, in his
examination, he has not supported much of the
prosecution case, but bare facts have been proved by
him.
337. The above facts categorically reveal that, in
fact, the whole purchase of land for construction of
Rajpur Road house was done by A-1. A-2 was
nowhere. She was behind the curtain. The land was
procured by A-1 in the name of A-2. A-1 had been
instrumental.
338. The question is as to who constructed the
house? If a person constructs a house, he must
possess receipts of the goods, which he had
purchased. He must have records to refer as to how
the payment was made either to the contractor, or to
any other person associated with the construction of
house. Here, in the instant case, despite knowing what
the prosecution case is, neither A-2 nor any of the
appellants has come forward to prove that A-2 made
payments for construction of the house.
339. PW 69 Sunil Goyal runs his business as
"Quality Hardware". During investigation, various
documents were taken into possession by the CBI from
this witness. It includes bills, which were prepared in
the name of A-1. There are vouchers also, which were
taken into custody by the CBI. The Court had already
concluded that A-4 took materials from PW 69 Sunil
Goyal for construction of the house by A-1.
340. PW 69 Sunil Goyal has stated that A-1 had
told it to him that some of his relatives would come,
and he should provide the articles to him at
reasonable rate. This Court in quite detail discussed
the evidence of PW 69 Sunil Goyal, while examining
the nature of Flat No. B-122, Panchvati Apartment,
Sector 62, Noida, which was purchased in the name of
A-4. Admissibility of Ex. A-120 has also been
discussed by this Court. In fact, the portion of Ex.
A-120 cannot be read into evidence, which is in the
nature of the statement of PW 69 Sunil Goyal. But, PW
69 Sunil Goyal has proved vouchers/bills in the name
of A-1. They are Ex. A 122 to Ex. 128. PW 69 Sunil
Goyal has stated that he gave materials under the
assumption that it is taken by PW 128 Mr. Marya and
A-4 for A-1. In his statement before the court, this
witness has stated that A-4 was introduced to him by
PW 128 S.S. Marya. The Bills/vouchers are in the
name of A-1.
341. The statement of PW 69 Sunil Goyal
categorically confirms that the building materials for
construction of Rajpur Road house were procured by
A-1 through S.S. Marya and A-4.
342. PW 85 Vinay Agarwal runs sanitary
business in Dehradun. The IO also had taken into
custody various documents from his possession,
including his bill books. Bills for sanitary items were
prepared in the name of A-1. These bills have been
proved by this witness. In his cross-examination by
the CBI, PW 85 Vinay Kumar has categorically proved
those bills of his shop, which were prepared some in
the name of A-1 and some in the name of Mrs. Romi
Marya. It also refers that, in fact, the goods were taken
by A-1 for construction of his house.
343. PW 99 Rakesh Sharma runs an electrical
goods shop in Dehradun. According to him, A-1
purchased various electrical goods from his shop and
he had sent a person, namely, A.K. Singh to collect
goods from him. An electrician Anoop Singh also
accompanied A.K. Singh. This witness has proved
various challans by which articles were given to A.K.
Singh. They are Exs. A-239 to 249. On certain points
this witness has also been cross-examined by the
CBI.But this witness has proved thatA-1 had
purchased the electrical goods from his shop, like
wires, pipes, switches, etc. Where was those articles
taken by A-1? Rajpur Road house was under
construction at the relevant time.
344. PW 138 is Ashok Kumar Singh. He has not
supported the prosecution case, but admitted that A-1
had constructed a house in Rajpur Road, Dehradun.
He has been shown the challans/bills proved by PW
99 Rakesh Sharma. He denied his signatures.
345. It is important to note that PW 138 Ashok
Kumar Singh has admitted that A-4 is his relative.
This Court has already held thatA-4 was most
instrumental in procuring the building material for
construction at Rajpur Road house. To certain extent,
PW 138 Ashok Kumar also supports the prosecution
case.
346. PW 103 Pravin Gupta is a person, who
runs furniture business in Dehradun. Initially, he did
not support the prosecution case. During
investigation, certain drawings and record of this
witness were taken into custody by the IO. It records
the name of A-1 with the drawings of the proposed
furniture. It supports the prosecution case. A-1
definitely approached this witness for manufacturing
the furnitures.
347. There are allegations against A-1 that he
did not pay for the material, which he procured for
construction of the Rajpur Road house. This aspect
will be discussed at a later stage of this judgment,
while appreciating the evidence for the offence under
Section 11 of the Act.
348. The court below has, in para 829 of the
impugned judgment, observed that PW 138 Ashok
Kumar Singh had been won over by the accused. It
may be noted that PW 99 Rakesh Sharma has proved
certain documents and stated that the electric goods
were taken by A.K. Singh. But, PW 138 Ashok Kumar
Singh did not corroborate the statement of PW 99
Rakesh Sharma. He also denied his signature on the
vouchers proved by PW 99 Rakesh Sharma. Under
these circumstances, the statement of PW 99 Rakesh
Sharma transpires confidence and is reliable to the
extent that A-1 had taken electric goods from his shop.
The prosecution could have got the signature of PW
138 Ashok Kumar Singh on Ex. A-239 to A-249,
examined by any forensic expert, but it has not been
done. PW 138 Ashok Kumar Singh has not
corroborated the statement of PW 99 Rakesh Sharma.
It may be for varied reasons.
349. If A-2 had constructed the house, she
could have come forward to reveal as to how did she
procure the articles for construction of house. She has
not done it. In fact, it is A-1, who was instrumental in
the construction of the Rajpur Road house. The finding
recorded by the court below on this point is based on
evidence on record.
350. It is argued on behalf of A-1 and A-2
thatfather of PW 104 Pramod Kumar had helped A-2 to
construct the house. PW 104 Pramod Kumar has
stated that his father was an acquaintance to the
husband of A-2, therefore, he helped her in
construction of Rajpur Road house. PW 104 Pramod
Kumar has admitted that his father was 72 years of
age in the year 2003-04. In his cross-examination, PW
104 Pramod Kumar revealed that his father got the
house constructed at a very low cost. He got steel from
Jamshedpur and Marble from Rajasthan. How was the
money paid to the father of PW 104 Pramod Kumar by
A-2? There is no record to it. Merely some person
comes and says that his father had helped A-2 to
construct the house, cannot be believed. It was a multi
storeyed house, not of one or two rooms. It must have
taken a lot of time, labour and resources to construct
the house. There is no basis for PW 104 Pramod
Kumar to say that his father had brought articles from
Jamshedpur and Rajasthan. He was an old aged
person then also. Had it been so done, there would
have been some documents also. But, the documents
are missing. The defence, which the A-1 and A-2 tried
to put forward is really a false story, which is totally
unreliable. Everything has been concealed by A-2 and
A-1. They have not come up with the case as to how
the house was constructed. On the other hand, the
prosecution has beyond reasonable doubt proved that
the Rajpur Road house was constructed by A-1.
351. This Court has already concluded that A-1
was fully instrumental in purchase of the property.
The building materials were procured at the instance
of A-1 by various persons for construction of the
house. A-2 was nowhere connected to it. In fact, A-1
was also trying to manufacture furniture through PW
103 Pravin Gupta, from whose possession the
drawings of the Rajpur Road house were recovered
during investigation.
352. The most important thing is that A-2 has
not come forward to say as to how the payment has
been made by her and to whom did she make the
payment?
353. These circumstances lead only one
conclusion that A-2 did not construct the house. A-2
was staying with A-1. As held by this Court, A-2 did
not have the income as alleged by her from HUF. A-1
was senior officer in taxation department in Dehradun.
There is no direct financial link, but there are multiple
circumstances, as stated hereinabove, which connect
A-2 with A-1. They do not connect A-2 with any other
person in the universe, in so far as the construction of
Rajpur Road house is concerned. Therefore, this Court
is of the view thatRajpur Road house was constructed
by A-1 from his income, which was not known and in
order to conceal his design, it was purchased by A-1 in
the name of A-2. The court below has rightly drawn its
conclusion on this point. The finding does not warrant
any interference.
HOTEL URUVELA INTERNATIONAL, BODHGAYA
354. According to the prosecution, this hotel is
situated in district Gaya. The land was purchased in
the name of A-3. He happens to be the brother-in-law
of A-1. It is the prosecution case that Hotel was
constructed on this land by A-1 and it was done in the
name of A-3.
355. According to the chargesheet, the valuation
of the hotel is Rs. 1,72,50,308/-. There are two
valuations reports of the hotel, one procured by the
CBI and another by the appellants. The court below
did accept the valuation done by the CBI and valued
the hotel at Rs. 1,72,50,308/-.
356. The court below extensively discussed the
evidence and held thatA-3 did not have source of
income to construct the hotel. It was done by A-1.
Various aspects have been considered to arrive at this
conclusion and finally the court below did conclude
that A-1 by abusing his position as a public servant
constructed the hotel in the name of A-3. It is benami
property of A-1. A-3 aided A-1 in his design to invest in
the construction of the hotel.
Arguments
357. On behalf of A-3, learned Senior Counsel
would submit that A-3 is owner in possession of the
hotel. A-1 has nothing to do with the hotel. The court
below has drawn the conclusion on wrong appreciation
of the fact and based on conjuncture and surmises.
Learned senior counsel has raised the following points
in his submissions;
i. The income tax return submitted by
A-3 was not taken into
consideration by the Investigating
Officer.
ii. Jeewach Mahto had given a
certificate to the effect that A-3 had
submitted ITR. The IO got signature
of Jeewach Mahto also identified
but did not produce Jeewach Mahto
as a witness. Therefore, an adverse
inference has to be drawn that had
Jeewach Mahto been examined, it
would have been adverse to the
prosecution case.
iii. PW95 Sanjay Kumar has submitted
valuation report of the hotel, which
is contemporary because it was
prepared at each stage of the
construction. Therefore, it is
reliable. The court below wrongly
discarded the report submitted by
PW95 Sanjay Kumar.
iv. PW95 Sanjay Kumar was a fellow
member from the Indian Institute of
Valuer. He has been authorized to
value a building.
v. The court below wrongly drawn the
inference that as to how A-1 could
deliver the valuation report of the
hotel to the IO. In fact, pursuant to
an order of the Delhi High Court,
the report was submitted to the IO
by A-1.
vi. A-3 had got valuation of his property
for the purpose of submitting
income tax.
vii. The valuation report submitted by
CBI is faulty. It is not expert
opinion. It is not contemporary
report. CBI valuer has taken the
CPWD standard parameters, which
are different from the parameters
adopted by PWD. CPWD standards
are applicable in Delhi, but, in the
city like Gaya, such parameters
cannot be made applicable.
viii. PW255 Rajesh Tomar is not an
expert. It was his first valuation
report. He even did not know the
thickness of the wall or depth of the
foundation. He did not submit
rough notes of the measurements.
ix. Opinion of an expert can be relied
on if it has its basis. The CBI valuer
has not submitted the rough notes.
The valuation done by PW94
R.N.P.J. Paul as well as PW170
Dinesh Kumar Nigam have also
been challenged on the same
grounds.
x. PW 234 Sitaram Sahu, PW 242
Mehfooz Alam, PW 245 Gopal
Prasad and many other witnesses
have not supported the prosecution
case. They have stated that the
hotel was constructed by A-3. The
hotel is mutated in the name of A-3.
Electricity and water connections
are in the name of A-3. Since, A-3
was ill with cardiac problem, PW
190 Sushil Kumar and PW 105
Umakant Singh helped him and
opened the account for the hotel,
but, it was operated by A-3.
xi. The CBI valuer has not submitted
documents to reveal the cost, which
they assessed. The cash memo and
other details have not been filed.
The court below wrongly shifted the
onus on defence to prove the cost. It
is wrong appreciation of the fact.
xii. PW 190 Sushil Kumar Singh has
accounts with A-3 since 1999. The
court below has wrongly drawn the
conclusion that PW 105 Umakant
Singh is close associate of A-1. The
finding is baseless. The court below
has also wrongly concluded that A-1
controlled the hotel through his
confidential persons. A-3 operated
the hotel throughout.
xiii. Mere suspicion, howsoever grave,
may not substitute proof.
xiv. A-3 was not required to inform the
university about the construction of
the hotel.
xv. The court below wrongly took
inference that A-1 constructed the
hotel on the ground that a
registration certificate of the car or
of a gypsy were found during search
from the hotel. It is argued that
merely if some documents are found
from some place, the owner of the
documents does not become owner
of the place. It is argued that it is
nothing but conjecture and
surmises.
358. In support of his submission, learned
Senior Counsel referred to the principle of law as laid
down in the cases of Ramesh Chandra Agrawal v.
Regency Hospital Limited and another, (2009) 9 SCC
709; State of H.P. v. Jai Lal and others, (1999) 7 SCC
280 and Mahmad Hanif Shaikh Ibrahim v. State of
Gujarat, (1994) SCC OnLine Gujarat 293.
359. In the case of Ramesh Chandra Agrawal
(supra), the Hon'ble Supreme Court discussed the
evidentiary value of an expert report as hereunder:-
"20. An expert is not a witness of fact
and his evidence is really of an advisory
character. The duty of an expert witness
is to furnish the Judge with the necessary
scientific criteria for testing the accuracy
of the conclusions so as to enable the
Judge to form his independent judgment
by the application of these criteria to the
facts proved by the evidence of the case.
The scientific opinion evidence, if
intelligible, convincing and tested
becomes a factor and often an important
factor for consideration along with other
evidence of the case. The credibility of
such a witness depends on the reasons
stated in support of his conclusions and
the data and material furnished which
form the basis of his conclusions.
(See Malay Kumar Ganguly v. Dr.
Sukumar Mukherjee [(2009) 9 SCC 221 :
(2009) 10 Scale 675] , SCC p. 249, para
34.)
22. In the article "Relevancy of Expert's
Opinion" it has been opined that the
value of expert opinion rests on the facts
on which it is based and his competency
for forming a reliable opinion. The
evidentiary value of the opinion of an
expert depends on the facts upon which it
is based and also the validity of the
process by which the conclusion is
reached. Thus the idea that is proposed
in its crux means that the importance of
an opinion is decided on the basis of the
credibility of the expert and the relevant
facts supporting the opinion so that its
accuracy can be crosschecked. Therefore,
the emphasis has been on the data on the
basis of which opinion is formed. The
same is clear from the following inference:
"Mere assertion without
mentioning the data or basis is not
evidence, even if it comes from an
expert. Where the experts give no
real data in support of their opinion,
the evidence even though
admissible, may be excluded from
consideration as affording no
assistance in arriving at the correct
value."
360. In the case of Jai Lal (supra), the Hon'ble
Supreme Court observed as hereunder:-
"18. An expert is not a witness of fact. His
evidence is really of an advisory character.
The duty of an expert witness is to furnish
the Judge with the necessary scientific
criteria for testing the accuracy of the
conclusions so as to enable the Judge to
form his independent judgment by the
application of this criteria to the facts
proved by the evidence of the case. The
scientific opinion evidence, if intelligible,
convincing and tested becomes a factor
and often an important factor for
consideration along with the other
evidence of the case. The credibility of
such a witness depends on the reasons
stated in support of his conclusions and
the data and material furnished which
form the basis of his conclusions."
361. In the case of Mahmad Hanif (supra), the
Hon'ble Gujarat High Court observed as to how to
accept public analyst's report as expert opinion, as
hereunder:-
"7. All these as far as possible should be
meticulously reflected in the Analyst's
report itself for the simple reason that
these material particulars are very much
necessary in order to compare and
establish the identity of the muddamal
sample with the one seized and sealed
from the accused under Panchnama, and
thereafter forwarded by the Investigating
Agency to the Public Analyst and
ultimately despatched back to be produced
before the Court as the very same only and
none other. Secondly, while analysing
muddamal sample, he must specifically
mention the scientific tests conducted and
the results derived therefrom. If by chance
in hurry or haste or through oversight, the
scientific tests are not mentioned in the
report, that is fatal to the prosecution as
any ipse-dixit way of reporting cannot be
accepted in criminal trial as it has no
probative evidentiary value in the eye of
Law. Thirdly, even after carefully
discharging the aforesaid two duties, the
Public Analyst has further still to
discharge one more duty, viz, to send the
report of his analysis to the Investigating
Agency under its official seal.
...............................................................
...............................................................
...............................................................
Before the evidence of Public Analyst can
be safely accepted and relied upon to base
the order of conviction and sentence, the
Court must have an opportunity of its own
to independently asses and appreciate the
same on the basis of scientific tests, etc.
Instead, if the Court is to surrender to any
bare opinion of the Public Analyst, that
can amount to abdication of its judicial
function, relegating itself to mechanically
record the order of conviction and
sentence without doing anything else. The
view that we are taking is duly supported
by the observations made by Mr. Justice
P.N. Bhagwati, as he men was, in case
of Suleman Usman Memon v. State of
Gujarat, reported in 1961 GLR 402,
wherein at page No. 410, it has been
observed as under:
"It is not enough for the
Chemical Examiner merely to state
his opinion as to what was the
concentration of alcohol in the
sample of the blood analysed by
him. The report of the Chemical
Examiner must show the tests or
experiments performed by him, the
factual data revealed by such tests
or experiments and the reasons
leading to the formation of the
opinion from such factual data. This
legal proposition emerges clearly
and unmistakably if one bears in
mind the true nature of the
evidence furnished by the
report..........................................
...................................................
The report of the Chemical
Examiner containing his opinion
must, therefore, disclose the factual
data on which the opinion is based
and the reasons in support of the
opinion. Opinion is no evidence
unless the reasons in support of the
opinion are given, for it is then only
that the Court can scrutinize the
reasons and decide for itself as to
what weight should be attached to
opinion."
362. On behalf of A-1, learned Senior Counsel
assailed the finding of the court below as follows:-
i. The joint account from which the
cost of the land was paid does not
have any connection with A-1.
ii. The observation that PW 105
Umakant Singh and PW 190 Sushil
Kumar were close to A-1 is not based
on facts on record.
iii. The observation that A-3 did not
figure in any bank account of the
Hotel is absolutely wrong. An
Account No. 0119009541 was in the
name of A-3 and Sushil Kumar
Singh, it was operated between
13.02.1999 and 23.07.2005.
iv. The prosecution did not investigate
the ITR, HUF of A-3. Even if no PAN
is written on HUF ITR of A-3, the
court forgot to see that either it's
Code (03) or the word HUF is written
on the ITR. And in this column of
PAN, it is written that it is applied
for.
v. It is wrong to observe that PW 95
Sanjay Kumar was not authorized for
valuation.
vi. The court below has wrongly drawn
inference from the fact that A-1 had
given the valuation report to CBI
because pursuant to the order
passed by the Delhi High Court, A-1
had collected the valuation report
from A-3 and gave it to the CBI.
363. Reference has been made to the certificate
given by Jeewach Mahto to argue that, in fact, A-3 had
given computation of income as HUF and proof of the
income, balance sheet and valuation report of the
hotel.
364. Learned Special Counsel for the CBI would
submit that A-3 did not have resources to construct a
Hotel with 34 rooms. A-3 failed to prove his any source
of income other than salary. The Hotel was not
operated by A-3. It was operated by A-1 through his
close associates PW 105 Umakant Singh and PW 190
Sushil Kumar Singh. The circumstances prove beyond
reasonable doubt that the Hotel was constructed by
A-1.
Discussion
365. There are two persons involved with regard
to the affairs of the hotel. They would require a brief
introduction. They are as hereunder-
PW105 Umakant Singh
366. This person is a resident of the village of A-
1. The account of the hotel was opened in his name.
He has been shown proprietor of the hotel in the bank
account. His father Ajay Kumar Singh runs an Arvind
society in village Bara. It is the case of the prosecution
that A-1 by abusing his official positions, got huge
amount deposited in the account of Arvind Society
through chartered accountants. It is also the
prosecution case that in a joint account number
15252 of A-2 and the wife of A-3 (She is Suniti Suman,
the daughter of A-2), huge amount was deposited in
cash by Ajay Kumar Singh. This amount is more than
Rs. 67 Lakhs. According to the CBI, Ajay Kumar Singh
deposited cash in the account of A-2 and Suniti
Suman, the wife of A-3 after having received it from A-
1. According to the prosecution, it was money earned
by A-1 by the illegal means.
PW190 Sushil Kumar Singh
367. This person is a childhood acquaintance of
A-1. His father was also working in the Magadh
University where father of A-1 was also working at the
relevant time. They were residing in the same campus.
The hotel has been registered in the name of this
person. He has been shown as the proprietor/MD of
the hotel. In the hotel, there is a Sneh Pointrestaurant.
It has also been registered in the name of this person.
It is the case of the prosecution that A-1 was operating
his business through PW105 Umakant Singh and
PW190 Sushil Kumar. They both were,
according to the prosecution, the confidential men of
A-1.
Establishment of the hotel
368. The land on which the hotel has been
constructed was purchased in the name of A-3 from
PW160 Jai Singh. He has stated about it. Three
cheques were given for consideration money of Rs.
2,10,000/-. These cheques checks were drawn from
the joint account of A-2 and A-3. The account number
was 6766, Bank of Baroda, Gaya Branch.
369. PW225 Vijay Kumar Sinha has stated
about the sale deed. PW216 Shashi Shekhar
Chaudhary has proved that the land was mutated in
the name of A-3. The hotel was constructed on it.
370. PW 239 Akhileshwar Prasad has stated
about electricity connection of the hotel. PW199
Sanjay Kumar has also stated about electricity
connection of the hotel, which was given in the name
of A-3. This witness has also proved the documents
relating to it.
371. PW 189 Narendra Kumar was working in
the Regional Development Authority at the relevant
time. He has stated thatthe map of the hotel was not
approved by the authority. During investigation, it
appears that the CBI got certain photographs of the
hotel taken. PW 219 Dalip Ghosh has stated about
the photographs and the negatives.
372. It is proved that the land on which the
hotel is constructed was purchased in the name of A-
3. Electricity connection, water connection, etc. were
taken in the name of A-3. This is one part of the story.
373. PW105 Umakant Singh opened bank
account in the name of hotel. He proved the
application form Ex. A-161 and other documents. In
fact, there were two accounts. According to him, he
was in search of a job and A-3 engaged him in the
hotel at a salary of Rs. 3,500/- per month. In
paragraph 4 of his statement, in the last line, PW105
Umakant Singh has categorically stated that in the
application for opening the account, he has been
shown as the proprietor of the hotel. In paragraph 6,
this witness has stated that he wanted to write 'for
Proprietor' but inadvertently it was written as
'proprietor'. He has stated that A-3 had accompanied
him to open the account. This witness has also
admitted that his father Ajay Kumar Singh was
Secretary of the Arvind Society. He proved signatures
of his father on various vouchers. Ex. A-261, by which
money was deposited in the account No. 15252 of A-2
and Suniti Suman, the wife of A-3. In these vouchers,
the signatures of Ajay Kumar Singh have been marked
with the letter "C". This witness has identified
signature of Ajay Kumar Singh.
374. According to the PW105 Umakant Singh,
since A-3 was a heart patient, he opened account for
the hotel. PW77 Satyendra Nath Upadhyay has also
stated that the account of the hotel was opened by PW
105 Umakant Singh. This witness had identified PW
105 Umakant Singh at the time of opening of the
account. This witness was Assistant Manager of the
Bank at the relevant time.
375. PW229 Nand Kishore Sharma has also
stated about the bank account of the hotel opened in
the name of Umakant Singh.
376. PW190 Sushil Kumar Singh has also
admitted that he opened an account of Sneh Point
Restaurant of the hotel in his own name showing
himself as the proprietor. According to him, since A-3
was unwell, he was asked to open the account.
377. PW186 Amarnath Prasad was working in
the office of the Labour Department at the relevant
time. According to him, the hotel was registered in the
name of PW190 Sushil Kumar.
378. PW191 VaidyaNath Prasad deposed that A-
3 did not inform the university about construction of
the hotel.
379. PW184 Mohammad Akram Alam is the
witness of the search of the hotel. He has stated about
it and proved certain documents.
380. There are two more important witnesses,
they are PW93 Anand Kumar Singh and PW115
Shadan Ayubi. Both are Income Tax Officers. They
have stated that the income tax return of A-3 was not
traceable in their department. PW93 Anand Kumar
Singh has stated that the record would confirm
processing of ITR of A-3 for the year 2000-2001 and
2003-2004.
381. The proposition of law need not be
reiterated. Source of income of ostensible owner also
required to be seen. Merely because ostensible owner
has no source of income, it may not connect the
property acquired by such ostensible owner with any
other person unconnected with the ostensible owner.
There are various other factors, which have to be kept
in mind while appreciating evidence in such matters.
382. Arguments have been raised with regard to
the wrong appreciation of evidence. This has been
raised with regard to the observation of the court
below when the court held that if the cost as assessed
by CBI was not correct, the accused could have
produced the actual proof of the Purchase. This cannot
be termed as wrong appreciation of the fact. If an
accused has acquired a property and constructed
some building, the prosecution may only get its
valuation done through some expert. As stated, the
assessment of the expert in all cases may not be 100
percent correct. It is based on reasons and on
guidelines, but, in fact, the accused who raised the
construction is the best person to tell the actual cost of
it. So if an accused claims that a particular item is
overvalued by the CBI, such accused is always at
liberty to file documents and proof to show that what
is the actual cost of such item and if court make such
observation, it is not wrong appreciation of fact. After
all, the fact within the special knowledge of a person
may be proved by such person as required under
section 106 of the Evidence Act.
383. It is true that merely because some of the
documents of A-1 or A-2 were recovered from the
hotel, they may not be connected with the ownership
of the hotel. The question is if only documents are
recovered then this assumption may arise. But if there
are other circumstances which otherwise connect A-1
with the hotel, in such situation, if any important
document of A-1 is also found during the search of the
hotel, it adds another link to connect A-1 with the
hotel. The court first proceeds to assess the valuation
of the hotel. There are report versus report, there are
oral evidence versus oral evidence on this point.
Valuation of the Hotel
384. On behalf of CBI, PW94 R.N.P.J. Paul, PW
170 Dinesh Kumar Nigam and PW255 Rajesh Tomar
have proved their valuation reports, which relate to
electric valuation, horticulture valuation and civil plus
furniture assessment respectively. On behalf of A-3,
PW95 Sanjay Kumar's report has been relied on.
385. PW95 Sanjay Kumar has stated that he
prepared various valuation reports of the hotel. He
proved them as Ex. A-231. The oldest report is dated
24.6.1999. The details of reports are as hereunder:
i. Report dated 22.06.2003. It is for the
period till 31.03.2003; date of inspection
is 16.06.2003. According to this report,
inspection of property was done on
16.06.2003. If it is so, how could this
valuation report be for the period ending
on 31.03.2003. Does it mean that after
31.03.2003 till the date of inspection i.e.
16.06.2003, no construction was raised?
ii. Abstract of estimate dated 20.06.2003.
iii. Report dated 02.07.2002. - It is also
upto 31.03.2002. According to this
report, date of inspection is 25.06.2002.
Again the same question, as to how on
25.06.2002, it could be recorded that
this report is for the period ending on
31.03.2002? Had no work been carried
out from 31.03.2002 to 25.06.2002 when
the inspection was carried out? If so,
who told it to PW 95 Sanjay Kumar?
iv. Report dated 28.06.2001. It is for the
period ending on 31.03.2001. The date of
inspection is 25.06.2001. The same
question arises that if inspection was
done on 25.06.2001, how could this
report be for a period ending on
31.03.2001? Does it mean that from
31.03.2001 to 25.06.2001, no
construction was done in the premises?
v. Abstract of estimate dated 25.06.2001.
vii. Report dated 26.06.2000 of the ground
floor for the period ending on
31.03.2000. The date of inspection is
15.06.2000. The question again arises as
to how on 15.06.2000 after inspection,
the valuer could report that this report is
for a period ending on 31.03.2000? Does
it mean that from 31.03.2000 to
15.06.2000, no construction was carried
out in the premises?
viii. Report dated 05.06.2000 of the first floor
for the period ending on 31.03.2000. The
date of inspection is 25.05.2000. How on
an inspection done on 25.05.2000,
valuation report could be given upto
31.03.2000?
ix. Abstract of estimate dated 22.05.2000.
x. Report dated 24.06.1999 for the period
ending on 31.03.1999. The date of
inspection is 18.06.1999. How based on
inspection carried on 18.06.1999, the
valuer could say that this report pertains
to period ending 31.03.1999?
386. The above reports leave many questions
unanswered, as stated hereinbefore. These reports will
be discussed further.
387. PW95 Sanjay Kumar is an engineer. He
was not registered at the particular time in the year
1999, when he gave the report. He was approved by
the Income Tax Department in the year 2006-07. He
has proved his report Ex.A-231 and a communication
given by him to the CBI which is Ex.A-232. The letter
Ex.A-232 reveals that PW95 Sanjay Kumar holds the
license of surveyor/assessors since 1995. He is a
professional valuer since 1995. The Court proceeds to
examine this report. It is argued that the valuation
reports were filed by A-3 alongwith the income tax ITR
when they were prepared. Ex.A-231 ismultiple reports.
As stated, the oldest report is dated 24.06.1999.
388. The court below has made a reference to
this report Ex.A-231 in the context as to how A-1 got
in possession of this report and how and under what
circumstances, did he hand over it to the IO. On this
aspect, it is argued on behalf of A-1 that pursuant to
an order passed by the Hon'ble Delhi High Court, A-1
collected this report from A-3 and handed over it to the
IO.
389. Learned Senior Counsel has made
reference to a communication dated 25.04.2008 of A-
1, made to CBI which is D54/1 on record. In
paragraph 4, it records thatA-1 collected this report
from A-3. On 05.08.2005 search were made at various
places including the house of A-1 and A-3. These
reports were not found then. The record definitely
reveals that pursuant to directions of High Court
Delhi, A-1 handed over this valuation report Ex.A-231,
prepared by PW95 Sanjay Kumar, to the IO. But,
where was this report kept till it was taken by A-1 from
A-3?PW95 Sanjay Kumar has stated that he had no
computer, therefore, he had no record of the reports
prepared by him.
390. There is no communication made by A-3 to
PW95 Sanjay Kumar with regard to the preparation of
the reports. How and under what circumstances, at
regular intervals, PW95 Sanjay Kumar did prepare
such reports? What was the fee he charged and how
did he was paid the fees?
391. This report is really much in doubt. It does
not inspire any confidence. This valuation report does
not meet the requirement of an expert report. It has
rightly been not relied on by the learned court below.
The author of it has no record of it. It was not found
during searches made. There is no communication on
record, which may indicate that PW95 Sanjay Kumar
prepared it at the instance of A-3. There is no
document with regard to fee, etc. charged by PW95
Sanjay Kumar Jain for preparing such reports. There
are no rough notes with this. These are neatly typed
documents. How these measurements were recorded?
When were they recorded at the spot? How they were
recorded at the spot? Therefore, this Court is of the
view that the report prepared by PW95 Sanjay Kumar
is much in doubt. In fact, its origin itself is doubtful.
The court below rightly discarded this report.
392. PW 255 Rajesh Tomar has valued the hotel
on the request of CBI. This witness has proved as
communication Ex.A-397, Ex. A-398 and valuation
report Ex. A-594. The civil construction valuation
report Ex. A-594 is in 60 pages. According to PW255
Rajesh Tomar, the total valuation of the hotel is
Rs.1,46,14,106/-. This witness proved this report and
stated that it is in his hand-writing.
393. According to PW 255 Rajesh Tomar, they
did valuation by separately analysing (i) abstract of
cost, (ii) analysis of rates and (iii) plinth area
calculation. This witness has indicated these
documents in Ex. A-594 (stated at para 6). He has also
stated that the report also contains measurement
details (Paper No. 241A/22 to 241A/59; which are part
of Ex. A-594). These measurement details are notes
prepared at the time when measurements were taken.
It has rough sketches and notes, a well.
394. PW 255 Rajesh Tomar has also proved the
furniture estimation report Ex. A-400. According to it,
the furniture which was found in the hotel was of the
value Rs. 5,75,200/-.
395. PW94 R.N.P.J. Paul has done electric work
valuation of the hotel and valued it at Rs. 18,38,155/-.
He proved his report Ex. A-228 and Ex. A-229. PW170
Dinesh Kumar Nigam has done valuation for
horticulture articles. He proved his report Ex. A-394.
According to him, the valuation of the horticulture
articles was Rs. 12,847/-.
396. The valuation reports relied by the CBI
have been challenged on multiple counts as stated
hereinbefore. Ex. A-594 is the civil work valuation
report proved by PW255 Rajesh Tomar. This witness
has been cross-examined at a length. He has
categorically stated that though they assessed the
value as per CPWD rates but area-wise cost index is
applied by them.
397. It is argued that the report did not have
rough notes with it but it is not true. There are large
number of notes with this report. There are
measurements, which were apparently were done at
the spot. There are calculations. As stated, this report
runs in about 60 pages. Report Ex. A-594 is a report
with its basis. The opinion is not simpliciter. It is
based on measurement (notes are part of the report). It
has basis of analysis, like analysis of rates and plinth
area calculation. It is thereafter the abstract of cost
has been done.
398. It is true that PW255 Rajesh Tomar could
not tell about the width of the wall as well and the
depth of the foundation. But, it does notvitiate the
report. This report Ex. A-594 and horticultural and
agricultural report as well Ex. A-400 the report with
regard to furniture has rightly been relied on by the
court below. In view of it, this Court is of the view that
the electric valuation at Rs.18,38,155/-, horticultural
valuation Rs.12,847/-, civil valuation at
Rs.1,46,14,106/- and the furniture valuation at
Rs. 5,75,200/- has to be accepted. Therefore, the total
valuation of the hotel is Rs.1,72,50,306/- (It also
included cost of land i.e. Rs. 2,10,000/-). The court
below has rightly accepted this valuation.
Source of income of A-3
399. Repeatedly, it is being argued that A-3 had
submitted his income tax return showing his property
from HUF and agriculture. Reference has been made to
Ex.A-570 a certificate given by Jeewach Mahto,
according to which A-3 had submitted income tax
return for the year 2000-01, alongwith the following
documents; computation of income, proof of
agricultural income, balance sheet, valuation report of
monastery.
400. PW 250 Surendra Kumar Rohilla, the IO,
has proved the report Ex. A-570. It is a certificate
given by Jeewach Mahto, Deputy Commissioner of
Income Tax, Gaya. According to this document, A-3
had deposited his ITR for the year 2000-01 along with
(i) computation of income; (ii) proof of agricultural
income; (iii) balance sheet; and (iv) valuation report of
monastery. It is dated 22.02.2005.
401. PW 250 Surendra Kumar Rohilla has
stated that Ex. A-570 was given to him by A-1. He
proved Ex. A-569, the seizure memo.
402. Much argument has been laid on Ex. A-
570 by A-1 and A-2. On behalf of the appellants, it is
argued that the IO got signature of Jeewach Mahto
examined by forensic expert. The forensic expert
confirmed signature of Jeewach Mahto on Ex. A-570,
but despite that Jeewach Mahto has not been
examined by the prosecution. Therefore, it is argued
that an adverse inference has to be drawn that had
Jeewach Mahto been examined, it would have been
adverse to the interest of the prosecution.
403. It is true that in para 216 of his statement,
PW 250 Surendra Kumar Rohilla has stated that he
got signatures of Jeewach Mahto examined by the
expert, but, according to PW 250 Surendra Kumar
Rohilla, Jeewach Mahto had told it to him that he did
not remember as to whether he had given Ex. A-570 or
not. The prosecution would definitely have examined
Jeewach Mahto to ascertain the truthfulness of Ex. A-
570. But, the prosecution did not examine him. The
question is as to whether an adverse inference may be
drawn on this ground?
404. PW 212 Anil Kumar has stated that a
search was conducted in the house of A-3 on
05.08.2005. He proved the search memo Ex. A-491.
According to him, an income tax file was also
recovered during the course of search, which this
witness has proved as Ex. A-497. In search memo Ex.
A-491, at Sr. No. 5, income tax return file is recorded.
It is argued on behalf of A-3 that ITR HUF of A-3 has
not been considered by the IO. It has also been argued
that the valuation report Ex. A-231 was got prepared
by A-3 for the purposes of income tax return.
405. As discussed, the valuation report Ex. A-
231 is not reliable. First of its report was prepared on
24.06.1999. Ex, A-497 contains 81 papers. PW 212
Anil Kumar has stated about all these papers (43A/1
to 43A/81). It is jointly marked as Ex. A-497. The
details of ITRs of A-3 are as hereunder:-
"ITR of A-3
As HUF As Individual
Sr. No. Assessment Income Documents Assessment Income Document
Year
Year
1. 2000-01 48,500- House Property - Calculation of total 2000-01 1,30,478 -salary i. Form 16
(Monastery) income
(43A/1) (43A/63) + ii. LIC receipt
75,000-Agriculture -proof of agricultural land
1,500 - Examination iii. ULIP receipt
remuneration
-balance sheet
2000-01 1.17,660 - Salary i. LIC receipt
-valuation receipt of
monastery
(43A/71) ii. ULIP receipt
iii. Form 16
2000-01 1,37,660 -salary i. LIC receipt
(43A/69) ii. ULIP receipt
iii. Form 16
2. 2001-02 51,750 - House Property -- -- -- --
(Monastery)
(43A/2)
80,000-Agriculture
3. 2003-04 70,000- House Property Calculation sheet of tax + 2003-04 1,36,000 - salary i. Form 16
Monastery IT Challan
(43A/3) (43A/45)
Nil- Agriculture ii. receipt of rebate
under Section 80G
iii. LIC receipt
iv. infrastructure
photocopy
4. 2002-03 52,000- House Property Computation of total 2002-03 1,31,093 - salary i. Form 16
(monastery) income; proof of
(43A/6) agricultural land (43A/51) 1,000- examination
85,000-Agriculture remuneration ii. LIC receipt
iii. ULIP receipt
5. 2004-05 52,500- House Property Statement of computation 2004-05 2,65,069-salary and i. Form 16
of tax; balance sheet
(43A/ Nil -Agriculture (43A/35) 23,253 - Jeevan Siralsja
ii. Receipt of Jeevan
15)
Suraksha
iii. LIC receipt
6. 1999-2000 1,12,999 - salary i. Form 16
(43A/66)
ii. LIC receipt
iii. ULIP receipt
406. According to the certificate, Ex. A-570, in
his ITR for the year 2000-01, certain documents were
enclosed by A-3. Heavy stress has been laid that the
balance sheet was submitted by A-3 with his HUF ITR,
but it was not considered.
407. The ITRs submitted by A-3 are in Ex. A-
497. The first document is ITR for the year 2000-01. It
is paper no. 43 A/1. In this ITR, "computation of total
income" and "proof of agricultural income" has been
written with one ink and "balance sheet" and
"valuation receipt from monastery in ground floor" is
written with another ink. Document No. 4 is not as
such valuation report written in this ITR. Instead, it is
recorded as valuation receipt of monastery of ground
floor. What is this valuation receipt?
408. ITR for the assessment year 2003-04 is
another document in Ex. A-497 (paper no. 43A/3), but
in this ITR neither balance sheet nor valuation report
of monastery is enclosed.
409. It may be noted that with Ex. A-231, there
is a valuation report of dated 22.06.2003 (which
speaks that it is till 31.03.2003), which fall for the
assessment year 2003-04. If A-3 had obtained
valuation report dated 22.06.2003, why he did not
enclose the valuation report with his ITR for the
assessment year 2003-04?
410. For the assessment year 2002-03, the ITR
is in Ex. A-497 (Paper No. 43A/6). In it also, there is
no balance sheet or valuation report of monastery
attached. If for the previous financial year, on
02.07.2002 (upto 31.03.2002), a valuation report was
allegedly procured from PW 95 Sanjay Kumar, which
was for the period ending on 31.03.2002 why this
valuation report was not filed in the ITR for the
Assessment Year 2002-03?
411. Similarly, if A-3 had obtained valuation
report dated 28.06.2001 (part of Ex. A-231) for the
period ending on 31.03.2001, why it was not filed in
his ITR for the Assessment Year 2001-02?
412. Ex. A-570 does not support the defence
case in any manner. In view of what is discussed
hereinbefore, non-examination of Jeewach Mahto has
no effect on the prosecution case. Why and how A-1
got Ex. A-570? Why Jeewach Mahto gave such
certificate? Who asked it? Income tax return filed with
the status "03" by A-3 (Ex. A-497 - paper no. 43 A/1)
records that four documents are attached with it,
including balance sheet and valuation report of
monastery. But, as stated, in the subsequent
yearsITRs neither balance sheet nor any valuation
report of monastery was attached. Why it was done for
one year only? This ITR has been filed in HUF capacity
by A-3. How was HUF constituted? Who were the
members of HUF? Who were the family members of A-
3, those formed HUF? What is the agricultural income
of A-3? There is no evidence except ITR entries. It
definitely appears that A-3 under some design
submitted his ITR under HUF category since 2000
onwards only. Had he filed any ITR prior to it, he
would have proved it. These ITRs, in fact, do not show
or establish any agricultural income of A-3, either in
his individual capacity or as HUF.
413. In the case of J. Jayalalitha (supra), the
Hon'ble Supreme Court has categorically held that
merely recording of income in the ITR does not prove
income of a person in the proceedings under the Act.
414. A-3 could have shown his income in this
trial. He could come up with the case as to what was
his income from agriculture? How did he get that
income? How money was deposited in his account? In
which account, money was deposited? It is not done.
A-3 cannot take shelter of ITRs to show that he had
income.
415. It is argued on behalf of the appellants that
A-3 had an account with PW 190 Sushil Kumar Singh,
which was operated between 13.02.1999 to
27.02.2005. Therefore, it is argued that PW 190 Sushil
Kumar Singh was known to A-3, hence, he worked
with A-3. This argument has less merit for acceptance.
Even if PW 190 Sushil Kumar Singh had an account
with A-3 since the year 1999, it makes no difference.
In the instant case, the connection between PW 190
Sushil Kumar Singh and A-1 is well established. The
design is explicit. The presence of A-1 has been
concealed with regard to the Hotel. Even A-3 concealed
his presence in official record e.g. registration, bank
accounts of the hotel, etc.
416. In his examination under section 313 of
the Code, A-3 has stated that he had income to
construct the hotel. A-3 and his wife both were
working in the university. The net salary of A-3 was
Rs. 21,03,355/-. The net salary of his wife was
Rs.13,29,509/-. They have spent Rs. 10,95,495/- on
LIC policies, etc. The investment in the policies was
done by A-3 and his wife for more than 30 % of their
earnings. They were left with about Rs. 23 Lakhs.
Their expenses, their children expenses, were to be
incurred by them.
417. A-3 has also stated in his statement under
section 313 of the Code that he had taken loan for the
purpose of hotel but no documents have been filed or
proved. He had also stated that his father-in-law has
given him Rs. 12 Lakhs long back, but, there is no
record of it. So, these income cannot be included in
the income of A-3.
418. After making payment for LIC policies and
other policies, as stated, A-3 had merely about Rs. 23
Lakhs with them. They had to run their day to day
business, children schooling, etc. with this money. The
cost of the hotel is Rs. 1,72,50,308/-. It categorically
establishes that, in fact, A-3 did not have any source
of income to construct the hotel? A-3 did not have any
money.
419. This may be examined from another
aspect. Prosecution has proved that A-3 did not have
any source of income for constructing the hotel. A-3
did not construct the hotel. Since beginning it is the
prosecution case that the hotel was constructed by A-1
in the name of A-3. If A-3 had constructed the hotel,
he would have come up and produce documents to
show as to how he got the money to construct the
hotel. Whom did he pay money for construction? How
did he brought articles, building materials, etc.?
420. A-3 has not informed the university. It is
argued that it was not required under the university
regulations. But, the question is as to what made A-3
afraid that he did not open the account of hotel in his
own name? Why did he not get the hotel registered in
his own name? It is argued that he was sick. This
argument has no legs to stand on.
421. PW 105 Umakant Singh has stated that A-
3 had accompanied him to open the bank account. PW
105 Umakant Singh has been shown the proprietor of
the hotel. Why? PW105 Umakant Singh has definitely
close bonds with A-1. His father Ajay Kumar Singh
had deposited huge amount in cash in the account of
A-2 and A-3. The nexus is explicitly clear. To conclude
that A-1 was close to PW105 Umakant Singh is not
any conjecture or surmise. It is a presumption, which
the Court can draw under Section 114 of the Evidence
Act. PW190 Sushil Kumar got the hotel registered in
his own name. In his application, Ex.A-447, he has
shown himself Managing Director. The registration
certificate of the hotel Ex. A-448 reveals PW-190
Sushil Kumar as the Managing Director. The
connection of A-1 with PW 105 Umakant Singh and
PW 190 Sushil Kumar makes it explicit that it is A-1
who made these arrangements. A-1 did conceal the
name of A-3 in bank accounts, etc. The court below
has rightly concluded that A-1 controlled the hotel
through PW105 Umakant Singh and PW190 Sushil
Kumar.
422. It is true that some of the witnesses have
stated that A-3 constructed the Hotel. They did not
support the prosecution case. It does not doubt the
prosecution case. The prosecution has proved its case
beyond reasonable doubt.
423. Therefore, having considered the entirety of
the fact, this Court is of the view thatthe hotel was
constructed by A-1 in the name of A-3. A-1 is owner of
the hotel. This is benami property of A-1.
Agricultural land at Village Pondha in Dehradun
424. According to the prosecution, A-1
purchased 54.83 bigha land in the name of Abhay
Kumar Singh and Vinay Kumar (34.74 bigha in the
name of Abhay Kumar Singh for a sale consideration
of Rs. 12,49,100/- including stamp duty and 20.09
bigha in the name of Vinay Kumar for sale
consideration of Rs. 5,93,800/-, including stamp
duty). These purchases were done by executing 12 sale
deeds between 2002 and 2004. It is also the case of
the prosecution that both Abhay Kumar Singh and
Vinay Kumar did not have source of income to
purchase the property. Both were close to A-1. The
property dealer Rajul Agarwal and PW 100 Gaurav
Tripathi assisted A-1 in procuring these land. It is also
the case of the prosecution that the income tax returns
of Abhay Kumar Singh were filled up by A-1. It is he,
who gave those income tax returns in the Income Tax
Department, but took them back and never returned
to the Department.
425. The Court below discussed the evidence
and concluded that A-1 purchased land in village
Pondha by way of these 12 sale deeds in the name of
Abhay Kumar Singh and Vinay Kumar. This land was
benami property of A-1.
Arguments
426. On behalf of A-1, it is argued that Pondha
land does not belong to A-1. This land has been
purchased in the name of Abhay Kumar Singh and
Vinay Kumar. A-1 had no financial dealings with
Abhay Kumar Singh. Abhay Kumar Singh is not an
accused. The vendors have categorically stated that
they sold the land to Abhay Kumar Singh and Vinay
Kumar. There has been no financial connection
between A-1 and purchaser of the land.
427. The finding of the court below has been
assailed by the learned Senior Counsel appearing for
A-1 as follows.
i. The trial court seriously erred in
appreciating the facts on record that
there cannot be any case of benami
property if the benamidar is neither
a witness nor an accused in the
case. In the instant case, Abhay
Kumar Singh is neither an accused
nor a witness.
ii. The prosecution has admitted that it
has not considered the
representation of Vinod Kumar
Singh of Dhanbad, who had given
money to Vinay Kumar Singh for
purchase of land at village Pondha.
iii. None of the witnesses support the
prosecution case to prove that A-1
purchased the land at village
Pondha.
iv. Once it is established that Abhay
Kumar Singh is neither an accused
nor a witness, it is absolutely
irrelevant to anyhow connect A-1
with Abhay Kumar Singh.
v. If A-1 had helped Abhay Kumar
Singhin filing his ITRs, there is
nothing wrong in it. Moreover, the
misplacement of ITRs of Abhay
Kumar Singh and Vinay Kumar is
baseless.
vi. The trial court in its observations
tried to use conjecture and
speculation to connect A-1 with the
buyer without any conclusive proof.
428. On the other hand, on behalf of the CBI, it
is argued that it is A-1, who purchased the property in
the name of Abhay Kumar Singh and Vinay Kumar.
The prosecution witnesses have established the links,
which have conclusively established this fact.
Discussion
429. The connect has to be appreciated first.
Rajul Agarwal, according to the prosecution, was a
property dealer in Dehradun at the relevant time. He
was close to A-1. With him was PW 100 Gaurav
Tripathi; they both got the sale deeds executed at the
instance of A-1 after taking money from it.
430. The vendors are PW 2 Boondi Ram, PW 91
Kamal Singh, PW 57 Virendra Kumar Gupta, PW 59
Vijay Singh Thapli, PW 106 Mohan Singh, PW 206
Vinay Gupta and PW 226 Shobhit Mathur.
431. PW 2 Boondi Ram has stated that he and
his brother Megha Ram were not interested in selling
their land, but Rajul Agarwal and PW 100 Gaurav
Tripathi pressurized them to sell the land. PW 91
Kamal Singh is the nephew of PW 2 Boondi Ram. He
has also stated that in the year 2002, Rajul Agarwal
and PW 100 Gaurav Tripathi contacted them with
regard to purchase of land. This witness declined to
sell their land because it was their only source of
livelihood. But, according to this witness, he was
asked by PW 100 Gaurav Tripathi and Rajul Agarwal
as to what this witness wants.In reply to it, this
witness told that he wants some job. He was assured
job in the income tax department by Rajul Agarwal
and PW 100 Gaurav Tripathi. This witness has also
stated that his uncle Boondi Ram was also summoned
in the income tax office, where A-1indulged in an
argument with him and pressurized him to sell his
land. Thereafter, they sold their land.
432. PW 57 Virendra Kumar Gupta has stated
that Rajul Agarwal introduced this witness to A-1. A-1
discussed purchase of land with this witness and
finally the deal was finalized at the rate of Rs.
35,000/- per bigha. According to this witness, he
executed sale deed Ex. A-94.
433. PW 59 Vijay Singh Thapli has stated that
he had contested the Zila Panchayat election in the
year 2003-04. He was summoned from the income tax
office. A-1 questioned him about the source of money,
which this witness spent on his election. According to
this witness, A-1 then inquired from this witness as to
whether he wants to sell his land. He declined. But,
subsequently, Rajul Agarwal approached his father
and got the sale deed executed and this witness also
executed sale deed thereafter. He proved those sale
deeds, which are Ex. A-98, Ex. A-99 and Ex.A-100.
434. PW 226 Shobhit Mathur is another vendor.
According to him, Rajul Agarwal got the sale deed
executed from him in the name of Abhay Kumar
Singh, which is Ex. A-189.
435. PW 64 Dhiraj Singh Negi is an Advocate.
He authored the sale deeds. According to him, the
following 11 sale deeds were prepared by him and were
executed in his presence. He has not stated about the
sale deed Ex. A-189, executed by PW 226 Shobhit
Mathur in favour of Abhay Kumar Singh) :-
i. Sale deed dated 24.02.2003 in
favour of Abhay Kumr Singh,
Ex. A-107.
ii. Sale deed dated 24.02.2003
executed in favour of Abhay
Kumar Singh, Ex. A-94.
iii. Sale deed dated 7.1.2003 (it is
dated 08.01.2003) executed in
favour of Abhay Kumar Singh,
Ex. A-108. PW 206 Vinay
Gupta has also stated that this
sale deed was executed by his
father Nand Kishore Gupta.
iv. Sale deed dated 24.02.2003
executed in favour of Abhay
Kumar Singh , Ex. A-109.
v. Sale deed dated 14.05.2003
executed in favour of Abhay
Kumar Singh, Ex. A-98 (It has
been signed by Rajul Agarwal
also).This sale deed has also
been proved by PW 59 Vijay
Singh Thapli.
vi. Sale deed dated 23.07.2004
executed in favour of Abhay
Kumar Singh, Ex. A-99. This
sale deed has also been proved
by P'W 59 Vijay Singh Thapli.
As a representative of the
buyer Abhay Kumar Singh, it
has been signed by Rajul
Agarwal.
vii. Sale deed dated 5.6.2004
executed in favour of Abhay
Kumar Singh, Ex. A-110. It is
signed by Ranjan Kumar
Gupta as a representative of
Abhay Kumar Singh.
viii. Sale deed dated 23.07.2004
executed in favour of Abhay
Kumar Singh, Ex. A-100. (PW
59 Vijay Singh Thapli has also
proved it). This sale deed has
been signed by Rajul Agarwal
as buyer.
ix. Sale deed dated 09.08.2002
executed in favour of Vinay
Kumar, Ex.A-111. Rajul
Agarwal signed it as a witness.
PW 226 Vinay Gupta has also
stated that the sale deed was
executed by his father Nand
Kishore Gupta.
x. Sale deed dated 19.03.2003
executed in favour of Vinay
Kumar, Ex. A-112. Rajul
Agarwal signed this sale deed
as a representative of the
buyer. PW 206 Vinay Gupta
has also proved this sale deed
stating that it has been
executed by his father.
xi. Sale deed dated 16.08.2002
executed in favour of Vinay
Kumar, Ex. A-113. It has also
been signed by Rajul Agarwal.
436. PW 100 Gaurav Tripathi has also stated
that he along with Rajul Agarwal had approached
various vendors in village Pondha. The sale deeds were
executed in the name of different persons. Rajul
Agarwal had told this witness that he had been paying
money from the actual buyer. The sale consideration
was paid in cash. According to this witness, he did not
know as to who gave the money for such purchase.
437. PW 130 Babu Singh has also stated that,
in fact, in his village Pondha, Rajul Agarwal and PW
100 Gaurav Tripathi visited on multiple occasions
along with A-1 and his gunner.
438. From the statement of PW 2 Boondi Ram,
PW 91 Kamal Singh, PW 57 Virendra Kumar Singh,
PW 59 Vijay Singh Thapli, PW 226 Shobhit Mathur,
PW 130 Babu Singh and PW 100 Gaurav Tripathi, it is
abundantly clear that, in fact, A-1 was the actual
buyer and he was operating through Rajul Agarwal
and PW 100 Gaurav Tripathi. PW 91 Kamal Singh has
stated that A-1 had an argument with his uncle in his
office. PW 57 Virendra Kumar Gupta is categorical that
it was A-1, who was dealing with the property. This
witness also met A-1 in his office in the presence of
Rajul Agarwal, where a deal was finalized for purchase
of land. Even A-1 along with his gunner was seen in
the vicinity by PW 130 Babu Singh. This is one
circumstance.
439. There is another aspect in this matter. In
all the above sale deeds, which are 12 in numbers, the
buyers never appeared at the time of execution of sale
deed. As stated, most of the times, Rajul Agarwal
signed those sale deeds. If really Abhay Kumar Singh
and Vinay Kumar were purchasing the property, they
would have appeared to execute the sale deeds.
440. PW 81 Anil Kumar Pandey has stated that
after the year 2001, both the buyer & vendors are
required to appear for registration of the sale deed. In
fact, the court below has discussed every issue in quite
detail. It has been discussed by the court below that in
the absence of buyer sale deed could not have been
executed as per law, but under the influence of A-1,
those sale deeds were executed even in the absence of
the buyers.
441. The sale consideration in all these sale
deeds were paid in cash. PW 100 Gaurav Tripathi has
supported the prosecution case to a greater extent
when he says that money was paid in cash by Rajul
Agarwal. Rajul Agarwal had told it to PW 100 Gaurav
Tripathi that he received the money from the actual
buyers. As stated, many witnesses have stated that A-
1 was directly dealing with the buyers also. It
connects A-1 with the purchase. This inference is not
conjecture or surmise. It is a lawfully derived
inference.
442. There is another witness, namely, PW 164
Sanjay Kumar Jain. He connects Vinay Kumar with A-
1. This witness Sanjay Kumar Jain has been
instrumental in purchase of certain properties in
Noida in the name of A-2 and A-4. He has admitted
that he is a friend of Arunabh Suman, the younger
brother of A-1. He knew Arunabh Suman through
Vinay Kumar. Both were from Bihar. This witness
admits that he also knew A-1. Vinay Kumar was
studying CA at the relevant time.
443. Vinay Kumar did file one income tax return
on 17.03.2006. It is Ex. A-264 proved by PW 107 S.C.
Puri. Except it, according to this witness, other ITRs of
Vinay Kumar were not traceable. This ITR, Ex. A-264
is for the assessment year 2005-06. In it, the address
of Vinay Kumar is of Laxmi Nagar, Delhi. His income
from salary is Rs. 84,000/- and some profits at Rs.
16,500/-. The total income, according to this ITR, is
1,00,800/-. Interestingly, in all the three sale deeds
executed in the name of Vinay Kumar, which are Ex.
A-111, A-112 and A-1113 dated 09.08.2002,
19.03.2003 and 16.08.2002, respectively, the address
of Vinay Kumar is 26, DL, Road, Dehradun. This
address, according to the prosecution, is the address
of Rajul Agarwal.
444. As stated, at the time of execution of the
sale deeds, neither Abhay Kumar Singh nor Vinay
Kumar was present. Rajul Agarwal and PW 100
Gaurav Tripahi were managing those affairs for A-1.
The income of Vinay Kumar, as per the ITR Ex. A-264,
was about Rs. 1,00,000/- in the year 2004-05. How
did he purchase those properties in the year 2002 and
2003 for a huge sum of money? How did he get the
money?
445. An argument has been raised on behalf of
the appellants that one Vinod Kumar, who happened
to be a relative of Vinay Kumar had sold one of his
vehicles and given Rs. 5,00,000/- to Vinay Kumar to
purchase the property. How this money came from
Vinod Kumar Singh to Vinay Kumar Singh and
thereafter to the vendors? Vinay Kumar Singh was
never present at the time of execution of sale deeds.
PW 100 Gaurav Tripahi has categorically stated that
the sale consideration was paid by Rajul Agarwal,
which according to him, he received from the actual
buyer. As stated, A-1 had been dealing with the
vendors directly. A-1 was involved in it. Vinay Kumar
Singh did not have resources to purchase the land.
446. In all the three sale deeds, Ex. A-111, A-
112 and A-113, the address of Vinay Kumar Singh is
shown as 56, DL Road, Dehradun. In fact, in sale
deed, Ex. A-112, his address has been shown as DL
Road, Dehradun through representative Rajul Agarwal,
R/o 56A, DL Road, Dehradun and Rajul Agarwal
signed it.
447. It is also very interesting to connect
because the house of Rajul Agarwal was also searched
by the CBI. PW56 Som Prakash has proved the search
memo, which is Ex. A-92. In this Ex. A-92, there are
two interesting facts, they are as follows:-
i. The address of Rajul Agarwal is
56A, DL Road, Dehradun, and
ii. A photocopy of life insurance policy
of A-1 was found in the search from
the bedroom of Rajul Agarwal.
448. Rajul Agarwal was closely associated with
A-1. So much so that life insurance policy of A-1 was
found from the house of Rajul Agarwal. This policy was
effective from 23.06.2005 and it was done through
Rajul Agarwal. It is in the record as Ex. A-93.
449. In view of the foregoing discussions, the
following are established:-
i. A-1 was interested in purchase of
agricultural land in village Pondha.
He contacted the vendors thorough
Rajul Agarwal and PW 100 Gaurav
Tripathi.
ii. A-1 met some of the vendors. A-1
pressurized them to sell their land.
iii. The buyers were even offered job in
the Income Tax Department.
iv. Rajul Agarwal was closely
associated with A-1. From the
house search of Rajul Agarwal, a
photo copy of life insurance policy of
A-1 was also found.
v. Abhay Kumar Singh and Vinay
Kumar were never present at the
time of execution of sale deed.
vi. Vinay Kumar did not have the
source of income to purchase the
land.
vii. In some of the sale deeds, Rajul
Agarwal signed for the buyers.
viii. In all the sale deeds of Vinay
Kumar, the house address of Rajul
Agarwal has been written as the
address of the buyer.
450. Another buyer is Abhay Kumar Singh. He
also never appeared for execution of the sale deeds. He
is father of A-4, in whose name a flat was purchased in
Noida by A-1. This has already been discussed by this
Court. In fact, A-4 has been very close of A-1. A-4
assisted A-1 in construction of the Rajpur Road house.
451. PW 74 Prakash Upadhyaya and PW 75
Arjun Singh are two important witnesses. They have
stated that the income tax return of Abhay Kumar
Singh was given by A-1 and thereafter it was taken
back by A-1. A photo copy of that ITR was retained by
PW 74 Prakash Upadhyaya, which is paper no.
329A/5.
452. Why was A-1 interested in the income tax
return of Abhay Kumar Singh? This ITR was for the
year 2005-06. The IO had given a notice to Abhay
Kumar Singh. He gave a reply, which is Ex. A-606
proved by Surendra Kumar Rohilla, the IO. In his
reply, Abhay Kumar Singh has stated that he is ill. He
enclosed 3 ITRs pertaining to the year 2003-04, 2004-
05 and 2005-06. His total income in these three years
was Rs. 62,300/-, 65,500/- and 65,800/-,
respectively, with agricultural income of Rs. 90,000/-,
Rs.1,00,000/- and Rs. 1,00,000/- respectively. He also
did not have source of income to purchase the land in
village Pondha through 9 sale deeds, as stated
hereinabove. This is one part of it.
453. The another part of the income tax return
of Abhay Kumar Singh is more revealing. In fact, they
connect A-1 with Abhay Kumar Singh in clear terms.
This Court has no doubt to disbelieve the statement of
PW 74 Prakash Upadhyaya and PW 75 Arjun Singh,
who have stated that ITR for the year 2005-06 of
Abhay Kumar Singh was given by A-1 to PW 74
Prakash Upadhyaya and thereafter it was taken back
by him.
454. The income tax returns, which Abhay
Kumar Singh forwarded to the IO through his letter
Ex. A 606 were examined by Forensic Science
Laboratory. Forensic Science Laboratory Report, which
has been proved by PW 165 P. Venugopal clearly
establishes that, in fact, the ITRs of Abhay Kumar
Singh for the year 2003-04, 2004-05 and 2005-06
were filled in the handwritings of A-1. The forensic
science experts have also concluded that these ITRs
also bear signature of Abhay Kumar Singh.
455. Interestingly, in his examination under
Section 313 of the Code, in answer to question 548, A-
1 has admitted his handwritings in the ITRs of Abhay
Kumar Singh. What was the occasion for A-1 to fill in
the ITRs of Abhay Kumar Singh? Not for one year but
for many years. A-1 has been a very senior officer in
the taxation department. This further shows the nexus
between A-1, Abhay Kumar Singh and Rajul Agarwal.
The vendors were pressurized by A-1 through various
means.
456. An argument has been raised that Abhay
Kumar Singh is not an accused. This Court is of a view
that it does not make any difference. Abhay Kumar
Singh did not sign the sale deeds. The buyer was never
present. A-1 managed the whole affairs. It is A-1, who
had paid money to Rajul Agarwal, so that it may be
given to the vendors. PW 100 Gaurav Tripathi has
established and proved it. According to PW 100
Gaurav Tripathi, the actual buyer has paid money to
Rajul Agarwal. The witnesses have stated that it was
A-1, who was talking to them with regard to purchase
of the land. So, if Abhay Kumar Singh is not made an
accused, it does not affect the trial of A-1 for holding
property in the name of Abhay Kumar Singh and Vinay
Kumar.
457. Having considered, the entirety of facts and
circumstances, this Court is of the view that, in fact,
the Pondha land, through 12 sale deeds was
purchased by A-1 in the name of Abhay Kumar Singh
and Vinay Kumar. The Pondha land is benami property
of A-1. The court below has rightly concluded on this
aspect. The finding of the court below does not warrant
any interference.
Plot number 10, block C Sector 50 Noida,
Gautam Buddh Nagar, Uttar Pradesh
458. This plot has been purchased in the name
of A-2 on 15.11.2003. It is the case of the prosecution
that infact A-2 did not purchase it. It was purchased
by A-1 through his younger brother Arunabh Suman
and PW164 Sanjay Kumar Jain. Total cost of the plot
as per prosecution was Rs. 21,91,500/-.
459. The court below after extensively
examining the evidence found thatthe plot is a benami
property of A-1. A-1 purchased it, in the name of A-2.
Arguments
460. On behalf of A-2, it is argued that the
property has been purchased by A-2 from her own
source of income. She is a rich lady and an
agriculturist. She paid the money out from her bank
accounts. A-1 has no connection with A-2 in her
financial dealings. Reference has been made to the
accounts of A-2 to argue that from her account A-2
took money to purchase the plot.
461. On behalf of A-1, learned Senior Counsel
would submit that the entire payment was made by A-
2 as proved by PW164 Sanjay Kumar Jain. The
investigating officer also confirmed that payment was
made by A-2. PW 157 Bhanu Pratap Singh has also
proved that he sold the plot to A-2 and not to A-1. A-1
is nowhere connected with the purchase of the plot.
462. On behalf of A-1, the finding recorded by
the court below has been assailed on the following
grounds:-
(i) The court below wrongly tried
to implicate A-1 on the ground
that PW164 Sanjay Kumar
Jain was friend of Arunabh
Suman. PW164 Sanjay Kumar
has categorically stated that
through Arunabh Suman, he
met A-2 and it is A-2 who
purchased the plot. The
observations in the impugned
judgement is absolutely wrong
because it is based on wild
conjectures.
(ii) The plot was purchased by A-2
through payment from her own
bank account no. 15252 SBI,
Nabinagar and Dena Bank,
Dehradun account no. 2723.
The draft of Rs. 10 lakhs was
made from account no. 15252
on 15.07.2003. On 10.10.
2003, Rs. 4 lakhs were
withdrawn by A-2 from her
account number 2723 which
was used for preparation of a
bank draft by PW164 Sanjay
Kumar Jain.
(iii) The record proves that the sale
consideration was paid by A-2.
463. Learned Senior Counsel would submit that
the plot was purchased by A-2 from her income.
Records have established it. There is no financial link
to connect A-2 with A-1.
464. On the other hand, learned counsel for the
CBI would submit that the plot had been purchased by
A-1 through A-2.A-2 did not have source of income to
purchase the plot. At the relevant time, various
properties were purchased by A-1 in the name of A-2
and others. It is argued that the court below rightly
concluded that the plot was purchased by A-1 in the
name of A-2.
Discussion
465. Basic facts are not in dispute The plot was
allotted to PW157 Bhanu Pratap Singh by the new
Okhla Industrial Development Authority (Noida).In his
statement, PW157 Bhanu Pratap Singh, has stated
that he had received Rs. 4 Lakhs through draft and
remaining amount of the plot had already been paid by
A-2 to the authority. This witness has proved the
transfer deed Ex.A-356. There is a contradiction
between the statement made in the transfer deed Ex.A-
356 and in the statement of PW157 Bhanu Pratap
Singh.
466. As a witness, PW157 Bhanu Pratap Singh
has stated, in the last sentence of paragraph 1 of his
statement, that the remaining amount had already
been paid by A-2 to the authority. It means that when
the transfer deed was executed till then, all the dues of
the authority had been paid by A-2 and on that date a
draft of Rs. 4 Lakhs was given to PW157 Bhanu Pratap
Singh.
467. In contrast to it, in the transfer deed Ex. A-
356, PW157 Bhanu Pratap Singh and A-2 agreed that
on that date, a draft of Rs. 4 Lakhs was given to
PW157 Bhanu Pratap Singh and in paragraph 3 of the
transfer deed, it is recorded that the remaining
balance of Rs.11,20,640/- shall be paid by A-2 to the
authority alongwith the interest. The
difference in the statement of PW157 Bhanu Pratap
Singh and the transfer deed Ex.A-356 is clear. This is
not minor variation. It is significant.It will be discussed
in a detail at a later stage.
468. PW164 Sanjay Kumar Jain is an
acquaintance of A-1 also. He knew Vinay Kumar in
Delhi. Through Vinay Kumar, this witnesses was
introduced to Arunabh Suman, the younger brother of
A-1. A flat was also purchased in the name of A-4
through PW164 Sanjay Kumar Jain. This Court has
already held that the flat was purchased by A-1 in the
name of A-4. A-4 was nowhere in the purchase of that
flat. This person PW164 Sanjay Kumar Jain has not
been involved in the purchase of plot in the name of A-
2 and the flat in the name of A-4 by any coincidence,
but, the circumstances which are prevailing in the
instant case leads to only one conclusion that PW164
Sanjay Kumar Jain, under a design, has got the
transfer deed executed in the name of A-2. Some of the
reasons have already been stated and some are to
follow.
469. According to the transfer deed and the
statement of PW164 Sanjay Kumar Jain, a draft of Rs.
4 Lakhs was given by A-2 to PW157 Bhanu Pratap
Singh at the time of execution of the transfer of the
deed on 15.10.2003. How did A-2 prepare the draft?
470. PW164 Sanjay Kumar Jain has stated that,
in fact, A-2 had got some cash and some demand
drafts, which were in the name of the authority. Since,
PW157 Bhanu Pratap Singh declined to accept cash,
according to this witness PW164 Sanjay Kumar Jain,
he took the money from A-2, deposited this amount in
his account and prepared one demand draft in the
name of PW157 Bhanu Pratap Singh. The account
from which the demand draft of Rs. 4 Lakhs was
prepared in the name of PW157 Bhanu Pratap Singh
was a joint account of PW164 Sanjay Kumar Jain and
PW 162 Rajendra Kumar.
471. If A-2 had gone to purchase flat through
her son Arunabh Suman with cash and demand drafts
in the name of the authority, why did she gave Rs. 4
Lakhs in cash to PW164 Sanjay Kumar Jain for
preparing a draft in the name of PW157 Bhanu Pratap
Singh? A-2 could have prepared the draft on her own
or at least through her son Arunabh Suman, who
admittedly was present at the time when the deed was
executed.
472. This Court is cautious at every stage that,
any presumption or inference may not be in the realm
of conjecture and surmises. The court is cautious as to
what could be presumed legally regard being had to
the common course of natural events, human conduct
and public and private business, in their relation to
the facts of the particular case. A mother wants to
purchase a property and she is with her son, if the
vendor wants a demand draft, the common course of
natural events suggests, and, in fact, human conduct
also indicate that the mother would either make the
draft from her own account on her own or would ask
her son to make a draft. Where is the question of
giving Rs. Four Lakhs in cash to PW164 Sanjay Kumar
Jain so that he may prepare draft? In his cross-
examination, PW164 Sanjay Kumar Jain has tried to
justify preparation of draft when he said that A-2 had
given money to Arunabh Suman and Arunabh Suman
gave money to this witness for preparing draft.
This is not reliable. Fact remains, draft for sale
consideration of Rs. Four Lakhs was given from the
joint account of PW162 Rajendra Kumar and PW164
Sanjay Kumar Jain. Why did Sanjay Kumar Jain
prepare the draft? Who gave this Rs. Four Lakhs to
him? The statement of PW164 Sanjay Kumar Jain is
not reliable to the extent when he says that he
prepared draft of Rs. Four Lakhs out from the amount
given to him by A-2.
473. PW164 Sanjay Kumar Jain has also stated
that A-2 had come along with some drafts in favour of
the authority and cash. Where are those drafts, which
A-2 had prepared in the name of authority? The
transfer deed Ex.A-356 records that A-2 was to deposit
remaining balance of Rs. 11,20,640/- in the authority.
It means that the remaining amount was to be
deposited by A-2 subsequent to execution of transfer
deed. It further means that the remaining account of
Rs. 11,20,640/- was to be deposited by A-2 either on
15.10.2003 subsequent to transfer of the deed or any
date thereafter.
474. As stated, PW157 Bhanu Pratap Singh has
stated in paragraph one last sentence of his statement
that A-2 had already deposited the remaining amount
with the authority.
475. PW89 Rajendra Singh is the person who
was working with the authority at the relevant time.
He had given the original file of the plot to the CBI. He
identified the seizure memo Ex.A-212 by which he
gave the file relating to the plot to the IO. The file has
jointly been proved by this witness as Ex. A-213. This
witness has stated about the documents in that file.
476. On behalf of A-1, reference has been made
to a document D209/8 in Ex. A-213. It is a statement
of payment made to the authority with regard to the
plot. This document D209/8 is part of the file of the
plot. According to this document, on 15.10.2003, Rs.
2,03,000/- were deposited with the authority with
regard to the transfer and process fee. Thereafter, no
amount was deposited with the authority. On
15.10.2003, according to this document D209/8,
entire payment of Rs.21,00,981/- was made with
regard to the plot. This document of the payment made
to the authority, as referred to on behalf of A-1,
falsifies the statement of PW157 Bhanu Pratap Singh
as well as the contents of transfer deed Ex.356 for the
following reasons:-
(i) According to PW 157 Bhanu Pratap
Singh before execution of the deed, entire
payment had already been made with the
authority by A-2. But, there is no
document to show as to how A-2 would
make payment prior to transfer of deed
in her name.
(ii) The transfer deed Ex. A-356 reveals that
Rs. Four Lakhs draft was given to PW
157 Bhanu Pratap Singh on 15.10.2003
and Rs. 11,20,640/- was to be deposited
with the authority. But, this document
D209/8 does not reveal that any
payment of Rs. 11,20,640/- was made
either on 14.10.2003 or on 15.10.2003
or any date thereafter.
(iii) A-2 did not have any opportunity to
deposit the amount prior to transfer of
the plot in her name which was mutated
in her name on 04.11.2003. This is also
part of the document with seizure memo
Ex. A-212.
(iv) If A-2 was to pay Rs. 11,20,640/- to the
authority, it was never paid as per
D209/8 (it is part of Ex. A-213).
477. On behalf of A-1, it is also argued that the
sale consideration for the plot was withdrawn by A-2
from her two bank accounts. One account no. 15252
in the name of A-2 and Suniti, the daughter of A-2 at
State Bank of India Nabinagar, Bihar and another
Dena Bank account no. 2723 of Dehradun. The Court,
at this stage, would like to discuss in a little detail
about the account no. 15252 of Nabinagar, Bihar in
the name of A-2 and Suniti Suman.
478. PW211 Premanand Yadav has proved the
joint account opening form (Ex. A-267) of this account
by which the account was opened in the name of A-2
and her daughter Suniti Suman, who is wife of A-3.
This account was opened on 24.04.1997 by Suniti
Suman for Rs. 500. Interestingly, according to this
witness, thereafter, various amounts were deposited in
this account. The details are hereunder (it is tallied
with Ex. A-261, the vouchers by which the money was
deposited in this account):-
Sr. No. Date Amount Deposited by
1. 23.05.2007 1,80,000/- Ajay Kumar Singh
2. 19.07.1997 2,95,000/- Ajay Kumar Singh
3. 03.08.1998 40,000/- Ajay Kumar Singh
4. 16.03.1999 30,000/- Sharvan Kumar
Agarwal
5. 16.4.1999 90,000/- Ajay Kumar Singh
6. 05.09.2000 30,000/- Ajay Kumar Singh
7. 04.01.2001 1,00,000/- Ajay Kumar Singh
8. 16.02.2001 2,00,000/- Ajay Kumar Singh
9. 11.12.2001 50,000/- Ajay Kumar Singh
10. 23.12.2002 20,000/- Ram Chandra Singh
11. 28.05.2002 31,000/- Ajay Kumar Singh
12. 22.02.2003 1,00,000/- Ajay Kumar Singh
13. 24.02.2003 40,000/- Ajay Kumar Singh
14. 24.02.2003 1,10,000/- Ajay Kumar Singh
15. 22.04.2003 50,000/- Ajay Kumar Singh
16. 03.06.2003 1,50,000/- Ajay Kumar Singh
17. 15.07.2003 15,00,000/- Ajay Kumar Singh
18. 14.11.2003 7,00,000/- Ajay Kumar Singh
19. 25.02.2004 3,00,000/- Ajay Kumar Singh
20. 09.06.2004 11,99,000/- Ajay Kumar Singh
21. 20.04.2005 7,00,000/- Ajay Kumar Singh
22. 21.05.2005 50,000/- Ajay Kumar Singh
23. 30.05.2005 3,00,000/- Ajay Kumar Singh
479. According to PW211 Premanand Yadav, till
30.06.2005, in this account no. 15252, Rs.
67,85,000/- were deposited in cash. These all
vouchers have been exhibited as Ex. A261. It is
important to note thatAjay Kumar Singh is father of
PW105 Umakant Singh in whose name, the account of
Uruvella International hotel was opened. PW105
Umakant Singh has identified signatures of his father
on these vouchers, Ex. A-261. Not only this, PW211
Premanand Yadav has stated about the cheques
issued from this account by A-2. Most of the cheques
have been issued in the name of Ajay Kumar Singh.
They are for varied amounts Rs. 50,000/-, 40,000/-,
20,000/-, 15,000/- 10,000/-, etc.
480. One thing is clear that in this account no.
15252, which was opened in the month of April, 1997
by A-2 alongwith his daughter Suniti Suman, huge
amounts were deposited, in cash, mainly by Ajay
Kumar Singh. In her statement recorded under Section
313 of the Code, A-2 was confronted to the amount
deposited in her account. In answer to question 46, A-
2 has stated that, in fact, the amount which was
deposited in the account no. 15252 was her income
from agriculture. According to her, they would deliver
the agriculture produce to Aadati (wholesale dealer)
who would sell it at the higher price and then gave sale
proceeds in cash.
481. There is no record filed or proved on behalf
of A-2 or any of the appellants that A-2 ever sold any
agriculture produce. There is no document to indicate
that A-2 deposited her agricultural produce with any
Aadati. A-2 has not produced any evidence that she
was maintaining her agricultural fields. There is no
document to show that even a small amount was ever
paid to any labourer for seeds, for irrigation, for any
other activity related to agriculture.
482. This Court has already concluded while
examining the income of A-2 (Statement 'C') in the
earlier part of the judgment that A-2 was not part of
HUF. The income from agriculture was Rs. 45,000/-
per year. A-2 could not have deposited such a huge
amount in her account No. 15252. Her total income
from agriculture is only Rs. 3,60,000/- (45,000/- x 8)
for the check period.
483. Mere submission of income tax return is
not proof of source of income in the proceedings under
the Act as held in the case of J. Jayalalitha (supra).
The account no.15252 is not sole account of A-2. It is
a joint account. How the money was deposited in this
account? The source has not been established. The
source is not known.
484. What is argued on behalf of A-1 is that on
15.07.2003, a draft of Rs. 10 Lakhs was prepared from
this account and it is argued to connect that from this
draft, sale consideration of the flat was given. The
record of authority which has been taken alongwith
seizure memo Ex.A-212 does not reveal it. On
15.10.2003 when the plot was transferred in the name
of A-2, a draft of Rs. Four Lakhs was given to PW157
Bhanu Pratap Singh. That draft was also not prepared
by A-2. The transfer deed Ex.A-356 reveals that
remaining amount of Rs. 11,20,640/- was to be paid
by A-2, But the record of authority does not reveal that
on any date Rs. 11,20,640/- was deposited by anyone.
485. It is also argued that Rs. Four Lakhs was
withdrawn by A-2 on 10.10.2003 from her Dena Bank
account. It does not also connect with the purchase of
this plot.
486. This Court has not found the statement of
the PW164 Sanjay Kumar Jain reliable when he has
stated that Rs. Four Lakhs cash was given by A-2 to
him for preparing the draft. The link in the instant
case are much connected. A-1 is the source of all
activities. An account of A-2 and Suniti Suman was
opened at Nabinagar, Bihar. Ajay Kumar Singh was
depositing huge amounts on that account. The source
of that money is not disclosed. PW105 Umakant Singh
is son of Ajay Kumar Singh. He was also working for A-
1 in running the Uruvella International Hotel. As
discussed hereinbefore, PW164 Sanjay Kumar Jain is
another instrument in the process. He was
instrumental in getting the flat registered in the name
of A-4 which, in fact, was purchased by A-1 as held by
this Court. PW 164 Sanjay Kumar Jain was
instrumental in transferring the deed of the plot in the
name of A-2. He himself made a draft from the joint
account for Rs. Four Lakhs. Why he did so? Money
was not deposited with the authority as per the
transfer deed. A-2 could not have deposited money
with the authority prior to transfer of the plot in her
name on 15.10.2003. After 15.10.2003, no amount
was deposited in the authority as per the record
enclosed with seizure memo Ex.A-213, as proved by
PW89 Rajendra Singh.
487. It is also the prosecution case that A-1 was
found in possession of the signed blank cheques of A-2
which he has used. Having considered all the facts and
circumstances, this Court is of the view that the
prosecution has been able to prove the case beyond
reasonable doubt that the plot was purchased by A-1
in the name of A-2. The plot is benami property of A-1.
The court below has rightly concluded that the plot is
benami property of A-1. The finding does not require
any interference.
Flat No. 303, IRS Officers Society, V-33
Vatayan Nehru Enclave Gomati Nagar,
Lucknow.
488. According to the prosecution, A-1 acquired
this flat in the name of A-2 in the year 2002. Total
amount of Rs. 17,50,000/- was deposited with the
society. In the computer ledger account, name of A-1
was recorded. An affidavit was filed by A-2, but, it was
prepared by A-1 and hand writing expert has
established it. The court below accepted the
prosecution case.
Arguments
489. Learned counsel for A-2 would submit that
A-2 in her independent capacity purchased the flat.
She is owner of it. The following points have been
raised by the learned counsel for A-2:-
(i) Investigating Officer has
admitted that A-2 had more
income than A-1.
(ii) All the transactions with regard
to the flat was made through
cheques except Rs. Four
Lakhs, which was taken as
loan by A-2 from Ajay Kumar
Singh. This amount was
straightaway transferred from
the account of Ajay Kumar
Singh to the society.
(iii) The Investigating Officer did not
inquire from A-2 about the
loan of Rs. Four Lakhs which
she took from Ajay Kumar
Singh.
(iv) The court below wrongly held
that A-2 gave any false
declaration alongwith her
application for allotment of the
flat.
(v) The court below wrongly held
that HUF was partitioned.
(vi) If HUF property was divided,
the coparceners held it as
Karta of the other HUF.
(vii) A-2 has not been questioned
on the question of partition of
HUF in her examination under
section 313 of the Code. Hence,
that part cannot be taken into
consideration.
490. Learned Senior Counsel for A-1 would
submit that the prosecution witnesses have stated that
A-2 was member of the society. He would submit that
the following points have also been proved by the
witnesses:-
(i) Payments were received
through cheques or drafts.
(ii) The flat was allotted to A-1 and
Rs. 17.50 Lakhs were paid by
her.
(iii) Original allottee was A-2 and
name of A-1 was only for the
purpose of reference. (reference
has been made to the
statement of PW 83 Parsenjeet,
PW 161 Ram Mohan Tiwari
and PW 137 Sandeep Pandey.)
491. Learned Senior Counsel for A-1 has
challenged the finding of the court below on the
following grounds:-
(i) The court below gave its observation
on the basis of conjecture and
speculation without appreciating
the facts.
(ii) It is a matter of record that
prosecution has already admitted
huge agriculture income shown in
the ITR HUF of A-2.
(iii) A-2 has categorically explained her
stand about the cash deposit in
account no. 15252 SBI Nabinagar,
Bihar.
(iv) Loan taken from Ajay Kumar Singh
by A-2 is a matter of record, which
cannot be denied.
(v) The court below wrongly concluded
that as to why A-2 did not produce
Ajay Kumar Singh as defence
witness ignoring the principles of
law that it is the prosecution to
examine witnesses with regard to
the amount, which he gave as a
loan to A-2.
(vi) A-2 had explained that the blank
cheques recovered from her house
at Jamshedpur were related to some
account in which there were very
less money.
(vii) There is nothing wrong if affidavit is
filled up by A-1 to assist A-2.
(viii) The affidavit of A-2 submitted with
the society to get the flat has no
evidentiary value because it is not
properly stamped.
(ix) It has wrongly been observed that
A-2 being a private person cannot
become a member of the IRS
society.
(x) It has also been wrongly concluded
that since name of A-1 was written
at one of the pages of ledger, it is
benami property of A-1.
492. On the other hand, on behalf of the CBI, it
is argued that A-2 did not have source of income to
purchase the flat; A-2 could not have been a part of
HUF, which is created by fiction of law. A-2 may be a
member of joint family; she had no income from
agriculture; at the relevant time, a house was being
constructed in the name of A-2 at Dehradun. Various
other properties were also purchased in her name.
These all are benami properties. The court below after
extensively discussing the evidence has rightly
concluded that the flat was purchased by A-1 in the
name of A-2.
Discussion
493. PW 83 Parsenjeet is the secretary of the
society. According to him, as per by-laws of the
society, the flats were constructed for the members,
their family members and some outsiders also.
According to this witness, A-1 was not member of the
society, instead, A-2 was the member of the society. In
paragraph 8 of his examination, PW 83 Parsenjeet has
admitted that whatever amount was deposited by A-2
in the society was deposited through cheques or
drafts. Money was not deposited in cash. In paragraph
9 of his statement, PW 83 Parsenjeet has admitted
that four times the amount was deposited from the
account of A-2 in Nabinagar branch of SBI and Rs. 2
Lakhs were deposited from Central Bank of India,
Gaya.
494. PW 161 Ram Mohan Tiwari was working as
a secretary of the IRS Officers Cooperative Society,
Lucknow. According to him, the flat was allotted to
A-2. She had already deposited Rs. 17,50,000/- till
02.05.2006. He has stated that they would contact A-1
with regard to payments of the flat. And, as soon as
they would make the telephone call to A-1, they would
receive the payment.
495. PW 137 Sandeep Pandey was also a
member of the society. He has proved the bylaws,
seizure memo, by which, documents were taken by
CBI. According to him, in the ledger, name of A-1 is
printed and thereafter, name of A-2 has been recorded
on it.
496. It is true that as per witnesses, the flat was
allotted to A-2. It is also true that as per the
prosecution witnesses also, the payment was made
from the account of A-2 or from some other account. It
was not in cash.
497. The question of affidavit having been filled
up by A-1 will also be considered. PW 83 Parsenjeet
has proved Ex. A-206 by which the details were given
to the investigating officer with regard to the payment
made in the flat.
498. On behalf of A-2, it is being argued that Rs.
Four Lakhs was transferred in the account of the
society from the account of Ajay Kumar Singh, which
was taken by A-2 as loan. This Court has discussed
the role of Ajay Kumar Singh in his dealings with A-1
at various occasions earlier. He has been close
associate of A-1. He has been depositing huge
amounts in the account no. 15252 of SBI, Nabinagar.
This account was in the name of A-2 and Suniti
Suman, the wife of A-3. Ex. A-206 reveals that three
amounts were transferred from the account of
Nabinagar. This Court had already concluded that how
amount was deposited in this SBI account no. 15252
of Nabinagar Branch, Bihar is not known. This Court
had disbelieved the story of A-1 and A-2 that money
which was deposited in the account no. 15252 of
Nabinagar SBI Branch was agricultural income of A-2.
Even otherwise, this account was in the name of Suniti
Suman also. A-2 did not have income from agriculture
to deposit such huge amount in the account No.
15252.
499. Ajay Kumar Singh was given various
cheques by A-2, as proved by PW 211 Premanand
Yadav. These cheques were amounting to Rs.10,000/-,
Rs. 15,000/- and Rs. 20,000/-. He was, in fact, a man
working for A-1. There is no question of any loan
having been taken from this man by A-2. It clearly
establishes that some money was deposited through
him. It is not loan taken by A-2.
500. Admittedly the affidavit, which was given
on behalf of A-1 in the society was filled up by A-1. The
human conduct has to be seen. A-1 is a senior IRS
officer. He has not been purchasing property in his
own name. He was purchasing property in the name of
his mother A-2, an old aged lady. The society was for
IRS service personnel. He fills affidavit for A-2. It has
also come in the evidence that, in fact, whenever,
payment became due, A1 was to be contacted and as
soon as it is done, payments were received in the
society. A-2 did not have source of income to purchase
the flat. In her name various properties were
purchased during this period.
501. In view of the foregoing discussion, this
Court is of the view that the prosecution has been able
to prove beyond reasonable doubt that the flat was
purchased by A-1 in the name of A-2. The court below
has rightly concluded that the flat is Benami property
of A-1. The finding does not require any interference.
Plot No. 12-A in Uttaranchal Service Housing
Association, Dehradun
502. It is the case of the prosecution that USHA
was formed in the year 2003. A-1 booked a plot for
him, but subsequently he took loan against the plot in
the name of A-2, in which A-1 stood as a guarantor. It
is revealed during investigation that it is A-1, who
used to maintain the loan account. According to the
prosecution, it is the property purchased and owned
by A-1 in the name of A-2.
503. The court below accepted the prosecution
case. It was held that allotment of plot was done in the
name of A-1. A-2 wanted that the plot be transferred in
her name, but it was denied repeatedly at many
occasions. A-1 was maintaining the loan account. A-1
was in possession of various blank cheques of A-2.
Certain amount was paid by A-1 against the plot. The
transaction sheet of cheque no. 571724, which was
issued in the name of USHA, was in the handwriting of
A-1. It is A-1, who was acting on behalf of A-2. A-1 was
the guarantor for the loan taken by A-2. Thereby the
court concluded, that A-1 concealed his presence in
the records. He deliberately took loan in the name of
A-2. It is Benami property of A-1.
Arguments
504. On behalf of A-2, learned counsel would
submit that the plot was allotted to A-1, who with the
permission of the Society transferred it to A-2 by a
resolution of USHA. Reference has been made to
resolution dated 14.02.2004. Learned counsel also
raised the following points in his arguments:-
i. A-2 had taken loan from SBI, Dehradun
for which USHA had no objections.
ii. A family member of the Services may
also be a member of USHA. Reference
has been made to the statement of DW 6
T.N. Singh.
iii. Rs. 1,00,000/- for USHA property was
transferred from the account of A-2 of
Dena Bank.
505. Learned counsel for A-2 would submit that
the plot was purchased and owned for all the times by
A-2 and A-1 has nothing to do with it.
506. On behalf of A-1, learned Senior Counsel
would argue that the observation of the court below is
absolutely wrong and totally based on conjecture,
without any substantial evidence. Learned Senior
Counsel raised the following points in his argument:-
i. The Executive Committee of USHA
had resolved that a family member
of the member of Services can also
hold registration of any plot.
ii. The USHA made provisions for loan
for the members and family
members from SBI, Rajpur Road,
Dehradun. Pursuant to it, A-2
obtained loan against the plot.
Apart from the bank loan, an initial
amount of Rs. 1,00,000/- was paid
by A-2 from Dena Bank account No.
2724.
iii. The entire payment was made by A-
2 for allotment of the plot.
iv. The court below should have
appreciated the deposition of DW 6
T.N. Singh. The court below took
into consideration the documents,
which were not legally proved by PW
101 Satish Kumar Shukla.
v. The USHA committed some errors
and wrongly issued some shares in
the name of A-1 on 29.01.2007.
Against this a complaint was lodged
by A-2/A-1 in the Society, which
rectified the mistake. On
27.11.2020,the mistake has been
rectified and now the plot stands in
the joint name of A-1 and A-2.
507. It is also argued on behalf of A-1 that both
the share certificates issued in the year 2007 and the
year 2019 are irrelevant in the present case because
they have been prepared beyond the check period.
508. On behalf of the CBI, it is argued that the
plot stood in the name of A-1. It was allotted to him.
He was a member of the Services. It is A-1, who
managed all the transactions, including the loan
transactions in the name of A-2. It is A-1, who
maintained the loan. It is Benami property of A-1.
Discussion
509. The USHA was a society registered under
the Uttarakhand Cooperative Societies Act, 2003. It
was registered on 12.09.2003 (the registration
certificate is first document taken into custody by the
CBI along with seizure memo Ex. A-250). The
registration certificate of the USHA was seized during
investigation. The seizure memo has been proved by
PW 101 Satish Kumar Shukla.
510. According to PW 101 Satish Kumar
Shukla, he was the Honorary Secretary at the relevant
time. He gave documents pertaining to the USHA to
the IO with his communication, Ex. A-250. He has
proved Ex. 251. It is an application of A-2. By means
of this application, A-2 had requested the Secretary,
USHA that her son A-1 is the Income Tax
Commissioner, who is member USHA. Since A-2 is the
mother of A-1, the USHA got loan sanctioned from SBI,
Rajpur Road, Dehradun. On 14.02.2004, a decision
has been taken that a family member may also obtain
a plot. According to the communication Ex. A-251, A-2
was given the plot, therefore, she be handed over the
documents. According to this witness, the plots were
allotted by a draw on 10.09.2006. Plot No. 82 was
allotted to A-1. This witness has proved this allotment
list, Ex. A-252.
511. There is another important document,
which has been proved by PW 101 Satish Kumar
Shukla. It is Ex. A-253, the minutes of meeting of
Executive Committee of USHA held on 22.07.2017.
According to this witness, at Agenda no. 3, the request
of A-2 was not accepted. After re-examination, it was
found that, in fact, A-1 is the original share holder of
the plot. This was also examined in the year 2011-
2015. This witness has spoken about a number of
other documents pertaining to the correspondence of
the plot made by A-2 and some other persons. A paper
no. 1310-B is a receipt of payment of Rs. 1,10,000/-
issued by USHA to A-1. This witness has stated about
it, but it was not exhibited because it was not proved,
as per the court's observation noted while recording
the statement of PW 101 Satish Kumar Shukla.
512. PW 142 S.S. Tomar was, at the relevant
time, working in the SBI, Rajpur Road Branch,
Dehradun. He gave the documents pertaining to the
loan to the IO during investigation. He proved this
communication, Ex. A-333. The loan documents,
which have been handed over by this witness to IO are
jointly exhibited as Ex. A-334. Ex. A-334 is the loan
application of A-2. This witness has also stated about
the documents pertaining to loan taken by A-2.
513. On behalf of the appellants, arguments
have been raised with regard to appreciation of the
evidence that the court below had taken into
consideration certain documents, which had, in fact,
not been proved by PW101 Satish Kumar Shukla.
514. It is true that paper no. 1310-B, which
appears to be a receipt issued in the name of A-1 by
the USHA has been taken into consideration by the
court below, but this document has not been proved. It
could not have been taken into consideration. The
documents, which have not been proved can definitely
be not read into evidence.
515. Interestingly, on behalf of the appellants
also, reference has been made to certain documents,
which have not been proved. On behalf of A-2, DW 1
Alok Kumar Jain and DW 6 T.N. Singh have been
examined on this point. DW 1 Alok Kumar Jain has
stated that he was an auditor of USHA which was
formed in the year 2003. According to him, an account
of USHA was also maintained. This witness has also
tried to identify the signature of N. Ravishankar on a
document, which is paper no. 1301-B/2. But, this has
not been proved as such. According to him, he had a
written a letter to A-2 with regard to default in
payment, which is paper no. 1298/2. He has identified
his signature on it.
516. In his cross-examination DW1 Alok Kumar
Jain has accepted that the communication, which he
had made to A-2, was with regard to the loan and not
membership of A-2 in USHA.
517. DW6 T.N. Singh has also stated that USHA
was registered in the year 2003. According to him, 92
members were issued shares. Most of the members
had taken plots in the name of their family members.
According to this witness, he had also taken plot
jointly with his wife. This witness has also not proved
any document. He has stated about the documents.
The court below did not believe this witness. This
witness was shown the allotment list of the plots. He
has admitted that in the list, a plot was issued in his
name and not in his wife's name, as told by him in his
examination-in-chief. The evidence of DW 6 T.N.
Singh does not, in any manner, support the defence
case.
518. Reference has been made by the learned
Senior Counsel for A-1, to Ex. 336, which is proved by
PW142 S.S. Tomar. It is an information by the bank
that the loan has been sanctioned in favour of A-2. The
loan application of A-2 is Ex. 334. The loan has been
applied on behalf of A-2. A-1 is a guarantor in it. In
this application, A-1 has given his address as 169/21,
Rajpur Road, Dehradun. It is Rajpur Road house. In
the loan application, initially the address of A-2 was
written of Bihar and subsequently her office address
was written as 169/21, Rajpur Road, Dehradun
opposite Ramakrishna Temple. What office was A-2
running then? Or after filing the loan application, A-1
realized that he has written his address of Rajpur
Road house, which he had purchased in the name of
A-2, then he subsequently included the Rajpur Road
house address for A-2 as her office address? Initially,
A-2's address in this application is of Bihar. A-1 stood
as a guarantor to obtain loan for A-2.
519. On behalf of A-1 and A-2, reference has
been made a Dena Bank voucher, which is document
no. D352/64 [paper no 4447 (Supplementary Paper
Book Part 12)]. This voucher is dated 21.03.2003. The
Court is reading it as argued, but the fact remains that
the USHA Society itself was registered in September,
2003, how on 21.03.2003, transaction was done in the
name of USHA? How can it be said that this
document, paper no. 4447 in Part 12 of supplementary
paper book relates to any transaction made by A-2 to
USHA? It cannot be assumed even.
520. PW 101 Satish Kumar Shukla is a very
important witness and most reliable witness on this
aspect. Three documents categorically he has proved.
Ex. A-250, by which he handed over documents to the
IO. Ex. A-251 which is dated 19.07.2017. On that
date, according to this communication, A-1 was
seeking documents of plot no. 82. Though she writes
in this communication that the plot was given to her,
but the question is as to how the plot no. 82 was given
to her? According to Ex. A-252, which is proved by PW
101 Satish Kumar Shukla, on 10.09.2006, in a draw,
plot no. 82 was allotted to A-1 and his name finds
mention at Sr. No. 41. Where is the question of plot
having been given to A-2, if the plot was allotted in the
name of A-1? A-1 was the member of services for
which USHA was formed.
521. There is another document, Ex. A-253
proved by PW 101 Satish Kumar Shukla. Arguments
have been raised that this document should not be
taken into consideration because it is beyond the
check period.
522. This argument has no force at all. The
check period is with regard to assets. This document
Ex. A-253 deals with an asset, which was acquired
during the check period. Ex. A-253 is minutes of
meeting of USHA dated 22.07.2017. Under Agenda no.
3, an issue raised by A-1 has been discussed to
conclude that original share of the plot is not in the
name of A-2, but A-1 is the original share holder. This
agenda also records that similar requests had already
been decided in the year 2011 and 2015. Those
resolutions have also been filed, but they have not
been proved as such because the original records were
not placed before the court below. The Court leaves it
at it.
523. Ex. A-252 and Ex. A-253 prove in
abundance that the plot was allotted in the name of A-
1. Loan was taken by A-2, but she was not a member,
when she applied for loan. Member was A-1. A-1 is
guarantor for the loan taken by A-2. This Court has
concluded earlier that A-2 had no source of income to
purchase huge property at the relevant time. It is the
period, when the property at Noida was being
purchased. It is the time when property at Lucknow
was being purchased and a house at Rajpur Road,
Dehradun was being constructed.
524. The court below has taken into
consideration the blank cheque books of A-2, which
were found from the possession of A-1. What is
important to note is that in the transaction sheet of
the cheque no. 571724, entries were made in the
handwriting of A-1. By this cheque, Rs. 20,000/- were
paid to USHA.
525. A-1 has put the face of A-2 in bank
transaction. In reality, it was A-1, who was dealing
with the property. The plot was allotted in his name.
He was the guarantor to the loan taken in the name of
A-2. In view of this and all the other facts and
circumstances, this Court is of the view that the
prosecution has been able to prove beyond reasonable
doubt that the plot was purchased by A-1. It is a
property of A-1. The court below has considered all the
attending factors and has rightly concluded that the
plot in USHA is a property of A-1. This Court does not
see any reason to make any interference on this
finding.
Honda City Car No. DL 2 FAZ 0021
526. It is the case of the prosecution that A-1
purchased the Honda City Car bearing registration No.
DL 2FAZ 0021 ("the Car") in the name of A-2.
Temporary registration of the car was done at Agra.
Subsequently, A-1 by a forged document got the car
registered in Delhi. For this purpose, a forged ration
card of PW 185 Rajeev Kumar was presented. A-2 also
gave a false affidavit showing her address of D-64,
Gulmohar Park, New Delhi. She was not resident of
that address. It is case that A-1 purchased the car.
The court below accepted the prosecution case and
held that the Car is Benami property of A-1 purchased
in the name of A-2.
Arguments
527. Learned Senior Counsel for A-1 would
submit that the finding of the court below are wrong
because they are against the facts of court record.
Learned Senior Counsel raised the following points in
his arguments:-
i. The Car was purchased out of the sale
proceeds of A-2's Palio car (Rs. 3,50,000/-),
which were deposited in the bank account
of A-2. This amount was paid to PW 217
Gunveen Singh. The Car was subsequently
sold to one Vipul Chaudhary.
ii. A-2 had taken a loan of Rs. 3,53,000/-
from the City Bank.
iii. There is nothing on record to link A-1 the
Car.
iv. The payment of Palio car was done by A-2
to Prema Marya after the check period.
v. As far as issue of taking Delhi number is
concerned, A-1 has nothing to do with it.
He has no role in manipulation of anyone's
ration card. Precisely, there is no role of A-
2 also.
528. Learned counsel for A-2 would submit that
A-2 had purchased Palio car from Prema Arya, which
she sold for Rs. 3,50,000/-. The proceeds were
deposited in her account. A-2 purchased the Car by
taking a loan and by making the remaining payment
from the account of Dena Bank in which the sale
proceeds of Palio car were received. A-2 had source of
income; she purchased the Car; A-1 has nothing to do
with the Car.
529. Learned Senior Counsel for the CBI would
submit that A1 enquired from PW 102 Rajeev Mittal for
purchase of Palio car. Then Palio car was purchased in
the name of Prema Marya with a registration number
0006. A-2 had not made any payment of car to Prema
Marya. A-1 wanted a fancy number of Delhi for the
Honda City car, therefore, he used ration card of PW
185 Rajeev Kumar for registration. Three cars were
used by A-1, viz., Ambassador, Palio and Honda City.
All had fancy numbers. All was playing with the
documents in the way he designed. It is argued that
the Car was purchased by A-1 in the name of A-2.
Discussion
530. This Court is cautious of the fact that
merely because two persons have some links, property
purchased by one may not be termed as the property
purchased by another. There should be something
more than that. There should be some legally
admissible evidence, clinching evidence to conclude
that the property owned in the name of 'A', in fact,
belongs to 'B'.
531. In the instant case, this Court has held
with regard to various properties that, in fact, A-1 had
procured properties in the name of A-2. A-2 is an old
lady. She is mother of A-1. A-1 is a senior officer in the
Indian Revenue Services. It has been established and
proved beyond reasonable doubt with regard to various
properties, as discussed hereinbefore, that A-1
purchased property in the name of A-2 for ulterior
motives. A-1 did not purchase any property in his own
name. But, this factor also may not per se make A-1
liable to any criminal action. Circumstances are being
examined. The guiding principles have been laid down
in the cases of Jaydayal Poddar, K. Ponnuswamy and
J. Jayalalitha (supra).
532. In the instant case, the Car was purchased
from Agra. It is purchased through some agent. It is
registered in Delhi. A forged ration car was produced
for registration so as to secure a Delhi number. Not
only Delhi number, but a fancy Delhi number was
procured. A witness has stated that he was told that a
senior Revenue Officer needs the number. What is
interesting is the number of the Car.
533. A-1 had an Ambassador car, which was
registered in the name of PW 247 Ramadhar Singh.
While discussing the assets of A-1, this Court has
concluded about the Ambassador car. This
Ambassador car also had the last two digits as "21".
The Honda City Car purchased in the name of A-2 also
has the last two digits as "21". Has A-1 been
instrumental to get this number?
534. The legal presumptions as permissible
under the Evidence Act may very well be drawn.
Human conduct, natural events should be taken into
consideration. Should this Court presume and believe
that A-2, an old lady, staying in Dehradun, purchased
a car from Agra and got it registered from Delhi; got a
fancy number; filed false affidavit independently?
Should this Court not take into consideration the
other clinching evidence, which make it evident that it
is A-1, who was instrumental in procuring the Car? It
is Car purchased by A-1. The court below has widely
discussed the evidence on this aspect.
535. PW 116 Yadram has stated about a ration
card, which was issued in the name of Rajeev Kumar.
This witness has proved the application of PW 185
Rajeev Kumar for obtaining ration card at his D-64,
Gulmohar Park, Delhi address (Ex. A-295). The ration
card no. 2864 was issued in the name of PW 185
Rajeev Kumar. This witness has also proved other
documents.
536. PW 185 Rajeev Kumar has stated that he
was developing USHA, a Housing Association. A-1 was
having a plot in this society. This witness knew him.
He did not support the prosecution case, but he has
proved the seizure memo Ex. A-444 and his ration
card Ex. A-445.
537. PW 233 Sunil Kumar Upadhyaya was
working in the Regional Transport Office, Agra at the
relevant time. He handed over the documents to the IO
during investigation. He proved the seizure memo Ex.
A-536 and application of A-2 for change of address,
Ex. A-537 and a ration card, which was given for
change of address of A-2. It is Ex. A-538.
538. The link is more than established. A-1 and
PW 185 Rajeev Kumar were acquaintance. A-1 had a
plot in USHA. PW 185 Rajeev Kumar was the
developer. A car was to be purchased at Delhi number.
The ration card of PW 185 Rajeev Kumar had been
forged and instead of PW 185 Rajeev Kumar and his
family member, in the forged ration card, the name of
Arunabh Suman, the younger brother of A-1, and his
family members, including A'2 name were included.
Who had done it?
539. PW 147 Amardeep Singh was an
authorized agent of City Bank at the relevant time.
According to him, in the year 2005, PW 217 Gunveen
Singh approached him and forwarded the documents
for registration of a car. Gunveen Singh had told to
this witness that the car belongs to some Government
officer, who is a Revenue Officer. He wants number of
his choice. This witness has proved the temporary
registration document, which reveals that the car was
registered temporarily in the name of A-2 at her
address 169/21, Rajpur Road, Dehradun. According to
him, these documents were forwarded to him by PW
217 Gunveen Singh.
540. PW 217 Gunveen Singh has stated that he
knew A-1. His mother wanted to purchase a Honda
City Car. She wanted to sell old Palio car. This witness
purchased the Palio car for Rs. 3,50,000/- and the car
was financed from City Bank. The car was purchased
from MGR Automobiles and handed over to A-2.
541. Interestingly, the documents, which were
forwarded for registration had a FAX No. of 2711611
from Dehradun. In para 9 of his statement, PW 217
Gunveen Singh has admitted that this FAX machine
was installed in his office compound. According to this
witness, he did not forward any ration card for
registration. If it was not forwarded by this witness,
how PW 147 Amardeep Singh received this document
through a FAX machine installed in the office of PW
217 Gunveen Singh? PW 147 Amardeep Singh has
categorically stated that he had received the
documents from PW 217 Gunveen Singh. He has
proved that PW 217 Gunveen Singh had forwarded
ration card Ex. A-538 to PW 147 Amardeep Singh.
This was a forged ration card.
542. PW 139 Sandeep Sharma has stated about
certain documents with regard to statement of account
of A-2 pertaining to City Bank. According to him, on
31.08.2004 in the name of A-2, loan of Rs. 3,53,376/-
was disbursed. She had deposited Rs. 1,36,860/- till
August, 2005.
543. PW 140 Ashok Kumar was Motor Vehicle
Inspector, New Delhi at the relevant time. He has
proved various documents with regard to the Car. He
has proved his communication, Ex. A-327 made to the
IO by which certain documents were forwarded to CBI
during investigation. The registration application Ex.
A-328 has been proved by this witness, which has
mark of Q 31 at the signature of A-2. It, according to
forensic report was signature of A-2, which means A-2
gave her wrong address of D-64, Gulmohar Park, Delhi
for registration of the Car. As stated, ration card, Ex.
A-538 had been submitted along with it, which was
also forged.
544. PW 217 Gunveen Singh has stated in para
10 of his statement that he did not tell it to the IO that
the car was delivered to Ranvir Singh, who was
Gunner of A-1. PW177 constable Ranvir Singh has
though not supported the prosecution case, but in his
cross-examination, he has admitted in para 13 that he
took delivery of the Car on 26.11.2004 and he signed
on it, which is Ex. A-443. Though, according to him,
he was not instructed by A-1 to take delivery of the
Car. According to him, a boy had come to leave the
vehicle and he signed it. This statement of PW 177
Ranvir Singh to the extent that under nobody's
instruction he took the delivery, is not reliable. He was
Gunner of A-1. It can very well be presumed that he
took the delivery of Car under the instruction of A-1.
545. It is the defence that a Palio car was sold
and with its sale proceeds and with the car loan, the
Car was purchased. The Palio car was registered in the
name of Prema Marya, who is the wife of PW 128
Shivdev Singh Marya. This Court has already
discussed the role of PW 128 Shivdev Singh Marya
with A-1. He was very close to A-1. The sale of Palio
car has been shown. But, how did Palio car purchased
by A-2? How did she pay money to Prema Marya?
546. During the course of argument, it is argued
that after the check period, this payment was made. It
makes this dealing more doubtful. It also doubts the
fairness in the transactions. The car was delivered on
26.11.2004 and it is being argued, on behalf of the
appellants, that the price of Palio car was paid after
the check period, which means after 05.08.2005.
547. It is also the case of the prosecution that a
false affidavit was given by A-2 with regard to her
address so as to get the Car registered from Delhi. The
court below has discussed various aspects pertaining
to it.
548. How the Palio car was purchased by A-2?
How the money was paid to Prema Marya is not even
shown by the defence? In fact, the Honda City Car was
delivered on 26.11.2004. How prior to it, Palio car was
procured by A-2 when she paid price for it after the
check period (after 05.08.2005)? At the cost of
repetition, the Court would like to observe that it is
admitted on behalf of the appellants during arguments
that the money was paid post check period. The Palio
car was in the name of wife of PW 128 Shivdev Singh
Marya. It is this man, who has been dealing for A-1.
PW 128 Shivdev Singh Marya is the man, who, was
closely associated with A-1 in the construction of his
Rajpur Road house. It is this man, who was procuring
building materials for construction of Rajpur Road
house. It is this man, who was dealing with ONGC for
letting out the Rajpur Road house of A-1. It is this
man, who has put his name plate at Rajpur Road
house. This is not a coincidence. It is a design that
that the Palio car was in the name of wife of PW 128
Shivdev Singh Marya.
549. PW 185 Rajeev Kumar was an
acquaintance of A-1. He was a developer in USHA,
where A-1 had a plot. It is PW 185 Rajeev Kumar,
whose ration card of Delhi was forged. A-1 had earlier
an Ambassador car made with the last digits "21",
though it was registered in the name of some other
person. The Court has already held that A-1 was
owner of it. Fancy number was sought and the same
number "0021" was obtained for the Honda City Car.
(Fancy number allotment slip is D 221/6, which is
part of Ex. A-329, as proved by PW 140 Ashok Kumar).
PW 147 Amardeep Singh has categorically stated that
it is PW 217 Gunveen Singh, who had forwarded the
documents including the forged ration card saying that
the car belongs to a senior Revenue Officer.
550. These all points connect A-1 with the car.
In fact, according to the invoices, Rs.1,00,000/- was
deposited from some IDBI Bank of Agra in the name of
A-2. Who did it? Who deposited money in the name of
A-2?
551. Having considered all the attending
circumstances and evidence on record, this Court is of
the view that the prosecution has been able to prove
that it is A-1 alone, who has done all these things. It is
A-1 alone, who had obtained a car number of his
choice from Delhi on some forged documents. A-1 is
owner of the Honda City Car. He got it registered in the
name of A-2. It is Benami property of A-1. The court
below has rightly concluded that the Honda City Car is
the benami property of A-1. There is no reason to
interfere.
Section 11 of the Act
552. A-1 has also been convicted under Section
11 of the Act. The other appellants have also been
convicted under Section 11 of the Act read with
Section 109 IPC.
553. According to the prosecution, A-1 extorted
money from a number of persons. In the chargesheet,
the IO, in paragraph 23 has given details of it. It is as
hereunder:-
i. A-1 demanded Rs. 40,00,000/-
bribe from PW 71 Mukesh
Chandra Arora, but he paid Rs.
16,00,000/- for the release of
his families' bank accounts
and fixed deposits.
ii. A-1 demanded Rs. 10,00,000/-
from PW 14 Mohd. Iliyas,
which he paid after mortgaging
the house.
iii. A-1 demanded Rs. 5,00,000/-
from PW 8 Prashant Kochar.
He paid Rs. 3,80,000/- to A-1.
iv. A-1 demanded Rs. 1,00,000/-
from PW 13 Amarnath Ahuja,
which he paid.
v. A-1 got his car repaired from
the garage of PW 10 Rakesh
Oberoi, but did not pay repair
charges of Rs. 63,540/-.
vi. A-1 purchased electronic items
from PW 8 Prashant Kochar's
shop, but did not pay for it.
vii. A-1 demanded money from PW
6 I.K. Batta, but he did not
accede to the demand.
viii. A-1 hired vehicle from PW 7
Devendra Pal Singh Chaddha,
but did not make any payment.
ix. A-1 constructed the Rajpur
Road house and used name of
PW 128 S.S. Marya for the
purchase of construction
materials, etc.
x. PW 177 Ranvir Singh has
stated that he visited with A-1
at various places and met
Vinay Kumar in Delhi.
xi. PW 16 Mohd. Hashmatulla, PW
233 Kailash Chandra Mohan
and PW 235 B.K. Todiwala
have stated that A-1
pressurized them to issue false
cancer patient certificate for A-
554. The court below dealt with these
allegations under the caption 'Conduct of A-1' and in
some of the cases accepted the prosecution case.
Arguments
555. Learned Senior Counsel for A-1 would
submit that the charge under Section 11 of the Act has
been framed against A-1 that he purchased costly
material goods from shop and did not make payment
for those materials. It is argued that merely taking
goods from some person does not make a public
servant guilty under Section 11 of the Act. Learned
Senior Counsel has argued that, in fact, the witnesses
did not support the prosecution case. Even otherwise,
it is argued that the prosecution has also to be shown
that the person from whom valuable things were taken
had some transaction with such public servant, which
according to the learned Senior Counsel is missing in
the instant case.
556. Reference has been made to the judgment
in the case ofS.N. Khosla (supra - Relevant paras 6 & 7
of the judgment have been quoted hereinbefore).
557. Learned Senior Counsel for A-1 has also
argued that the trial court forgot to appreciate that the
"conduct", "morality" and "bribe" are issues different
from disproportionate assets. Reference has been
made to the case of V.K. Puri (supra) and Vishwa
Vibhuti (supra).
558. In the case of V.K. Puri, the Hon'ble
Supreme Court has also observed that "In a case
involving Section 13(1)(e) of the 1988 Act, what is
necessary is as to whether keeping in view the
period in question, commonly known as check
period, the public servant has acquired wealth
which is disproportionate to his known sources of
income. It has nothing to do with individual case
of bribery. It has nothing to do with a series of acts
culminated into an offence".
559. In the case of Vishwa Vibhuti (supra), as
stated, the Hon'ble Delhi High Court, inter alia, laid
down the principle as to what material may be looked
into at the time of framing of charges.
DISCUSSION
560. At the relevant time, Section 11 of the Act
was as hereunder*:-
"11. Public servant obtaining valuable
thing, without consideration from
person concerned in proceeding or
business transacted by such public
servant.--Whoever, being a public
servant, accepts or obtains or agrees to
accept or attempts to obtain for himself,
or for any other person, any valuable
thing without consideration, or for a
consideration which he knows to be
inadequate, from any person whom he
knows to have been, or to be, or to be
likely to be concerned in any proceeding
or business transacted or about to be
transacted by such public servant, or
having any connection with the official
functions of himself or of any public
servant to whom he is subordinate, or
from any person whom he knows to be
interested in or related to the person so
concerned, shall be punishable with
imprisonment for a term which shall be
not less than six months but which may
extend to five years and shall also be
liable to fine."
_______________________________________________________
*After amendment (w.e.f. 26.07.2018), Section 11 of the Act is as hereunder:-
"11. Public servant obtaining undue advantage, without consideration from person concerned in
proceeding or business transacted by such public servant.--Whoever, being a public servant, accepts
or obtains or attempts to obtain for himself, or for any other person, any undue advantage without
consideration, or for a consideration which he knows to be inadequate, from any person whom he knows
to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about
to be transacted by such public servant, or having any connection with the official functions or public
duty of himself or of any public servant to whom he is subordinate, or from any person whom he knows
to be interested in or related to the person so concerned, shall be punishable with imprisonment for a
term which shall be not less than six months but which may extend to five years and shall also be liable
to fine."
561. Section 11 of the Act speaks of "valuable
thing" without consideration and for inadequate
consideration from a person, who have been, or to be,
or to be likely to be concerned in any proceeding or
business transacted or about to be transacted by such
public servant.
562. Purchase on credit from some shopkeeper
unconnected with official dealing by a public servant
may not fall under Section 11 of the Act.
563. It is true that for the offence under Section
13(1)(e) of the Act, including case of bribery is not
material. But, in the instant case, the appellants have
also been convicted under Section 11 of the Act.
Offence under Section 11 of the Act is quite distinct
from the offence under Section 13(1)(e) of the Act.
Individual instances of demand are also relevant
consideration for offence under Section 11 of the Act.
564. PW 7 Devendra Pal Singh Chaddha runs a
business of Travels and Tours. He has stated that he
provided vehicle to Nagia & Company. He proved
certain documents. He has been declared hostile by
the prosecution. He has categorically stated that he
had no transaction with A-1. This witness has not
supported the prosecution case in his examination
before the court below. The court below also did not
accept the prosecution case with regard to PW 7
Devendra Pal Singh Chaddha.
565. PW 8 Prashant Kochar also runs a
business of the Indian Store. He deals with Godrej and
L.G. products. He has proved a few documents. He has
also not supported the prosecution case. He has been
cross-examined by the CBI and confronted with
certain documents, particularly challans for
transporting the goods, which are in the name of A-1.
He proved the documents, Ex. A-28 to Ex. A-31.
566. This witness has not stated that he did not
receive consideration for the articles sent to A-1. Merely
because some articles were sent from his shop, the court
cannot presume that A-1 did not pay for it. The court
below did not appreciate the evidence in correct
perspective on this account. The fact remains that PW 8
Prashant Kochar has not stated that A-1 did take
any valuable thing without consideration from him.
Even otherwise, prosecution has not even shown that
there were any official link or any business pending
before A-1 pertaining to PW 8 Prashant Kochar at any
point of time.
567. PW 10 Rakesh Oberoi has stated that a car
belonging to A-1 was repaired in his garage, but he
has not stated that A-1 did not pay for it. As also, the
prosecution has not established that PW 10 Rakesh
Oberoi had any proceeding pending before A-1 at any
point of time.
568. PW 13 Amarnath Ahuja has not supported
the prosecution case. He has been declared hostile.
569. PW 14 Mohd. Iliyas has stated that A-1 had
demanded Rs. 10,00,000/- from him and he paid Rs.
5,00,000/-. When was the demand made? How was
the demand made? In what connection, it was made
and what was the occasion for A-1 to make such
demand? PW 14 Mohd. Iliyas did not reveal anything.
PW 14 is an income tax assessee. Mere statements
against any public servant cannot prove the
allegations unless there are some attending
circumstances. Therefore, this Court is of the view that
the statement of PW 14 Mohd. Iliyas cannot be
believed that A-1 demanded Rs. 10,00,000/- from him
and he paid Rs. 5,00,000/-. The court below has
wrongly concluded that PW 14 Mohd. Iliyas proved the
prosecution case.
570. PW 71 Mukesh Chandra Arora has stated
that his two Chartered Accountants Jaideep Dutta and
Pradeep Nath threatened him that his fixed deposit
receipts had been attached under the instructions of
A-1. If this witness pays one half of the amount of
F.D., they would be released. According to PW 71
Mukesh Chandra Arora, he arranged for Rs.
16,00,000/- and followed the car of Jaideep Datta and
Pradeep Nath. The car was stopped in front of a house.
This witness insisted that he himself would pay the
money, but Jaideep Dutta and Pradeep Nath did not
agree for it. According to this witness, he had told to
the "Commissioner Saheb" that since he acceded to his
request, his problem may be solved now. This witness
has been declared hostile by the prosecution. He was
confronted with his statement given during
investigation under Section 161 and Section 164 of the
Code. This witness has not stated that he paid money
to A-1. He declined the suggestion that in order to save
A-1, he is not revealing the true state of affairs.
571. Jaideep Dutta and Pradeep Nath have not
been examined by the prosecution. They are the
person, who, according to PW 71, Mukesh Chandra
Arora, took Rs. 16,00,000/- from him to give it to A-1.
In view of it, this Court is of the view that the
statement of PW 71 does not support the prosecution
case. Based on the statement of PW 71 Mukesh
Chandra Arora, it cannot be said that any demand was
made by A-1 from this witness and it can also not be
believed that PW 71 Mukesh Chandra Arora paid Rs.
16,00,000/- to A-1.
572. The finding recorded by the court below
with regard to PW 71 Mukesh Chandra Arora on this
point is not in accordance with law.
573. PW 188 P.S. Kochar has also not supported
the prosecution case. He has categorically denied that
A-1 ever demanded anything from him. This witness
has been declared hostile by the CBI and he has been
cross-examined. Nothing has been elicited in the
cross-examination of this witness, which may, in any
manner, support the prosecution case.
574. This Court has concluded that, in fact, the
Rajpur Road house was constructed by A-1 and
building materials and other construction materials
were procured by A-1 through various persons,
including PW 128 Shivdev Singh Marya and A-4. This
has already been discussed in the earlier part of this
judgment. But, merely because A-1 has procured
building materials and other articles for construction
of the Rajpur Road house, it cannot be presumed that
he did not pay for it.
575. PW 176 Mohd. Hasamtulla, PW 223
Kailash Chand Mishra and PW 235 B.K. Todiwala have
stated about certain documents. The prosecution has
examined these witnesses with regard to a cancer
patient certificate in the name of A-2. In order to
attract the provision of Section 11 of the Act, as stated,
it has to be also shown that the person, from whom
valuable thing was taken by a public servant, has had
any proceeding or business pending before the public
servant. The statement of PW 176 Mohd. Hasamtulla,
PW 223 Kailash Chand Mishra and PW 235 B.K.
Todiwala do not support the prosecution case on this
aspect.
576. PW 6 I.K. Batta has stated against A-1.
According to him, he was a Chartered Accountant. He
had many clients, including Windlas Steel Crafts,
Windlas Cutlery, Sardari Lal Oberoi Company Private
Ltd., M/s Ramesh Batta, Etc. This witness has stated
specifically about the income tax assessment cases
pertaining to Ramesh Batta Brothers, R.B.
Enterprises, etc. According to him, when this witness
met A-1 with regard to these assessment, A-1 asked
this witness that this witness should fix a meeting
with assessee. Later on, A-1 called this witness in his
house and demanded Rs. 5,00,000/-. This witness
expressed his inability to pay this amount. He
informed the partner/proprietor Ramesh Batta, who is
PW 88. According to PW 6 I.K. Batta, thereafter, PW 88
Ramesh Batta met A-1. Later on, PW 88 Ramesh Batta
told this witness that A-1 asked PW 88 Ramesh Batta
to get his work done through Ashok Kashyap, Charted
Accountant instead of PW 6 I.K. Batta. PW6 I.K. Batta
has stated that thereafter PW 88 Ramesh Batta and A-
1 had good relations. A-1 constructed a house in
which bricks were supplied by PW 88 Ramesh Batta.
577. PW 6 I.K. Batta has also stated that on one
occasion, in the assessment of Windlas Steel Crafts, A-
1 demanded Rs.10,00,000/- from this witness, which
he did not pay. A-1 threatened this witness of which a
report was lodged by the father of this witness to the
police. This witness thereafter filed complaint against
A-1. He has proved Ex. A-16, the seizure memo as well
as the complaint, Ex. A-17.
578. PW 88 Ramesh Batta did not support the
prosecution case. He was declared hostile and cross-
examined. It may be noted that it has been the
prosecution case that the building materials were
collected by A-1 for construction of the Rajpur Road
house through PW 128 Shivdev Singh Marya, A-4 and
other persons. It was the case of A-1 and A-2 that
Rajpur Road house was constructed by A-2 and not by
A-1. PW 88 Ramesh Batta has stated that during
investigation he has told that through PW 128 Shivdev
Singh Marya, he had supplied bricks to A-2 and
received payment. This Court had already concluded
that the Rajpur Road house was constructed by A-1. It
categorically means that PW 88 Ramesh Batta had
provided bricks to A-1. Initially this witness was not
truthful to the Court. PW 88 Ramesh Batta also denied
that PW 6 I.K. Batta told it to him that A-1 demanded
Rs.5,00,000/-.
579. PW 88 Ramesh Batta has, in his cross-
examination, admitted that he had changed his CA. In
his cross-examination by the appellants, PW 88
Ramesh Batta has stated that he changed PW 6 I.K.
Batta as his CA because he was not handling his case
professionally. He denied the suggestion that at the
instance of A-1, he changed his CA PW 6 I.K. Batta.
580. PW 60 Suresh and PW 61 P.S.
Krishnamurti were working in the Vigilance
Department of Income Tax. They have proved Ex. A-
101 and Ex. A-102. Ex. A-102 is a seizure memo by
which certain complaints against A-1 were given to
CBI. At Sr. No. 'D' of it, there is a complaint of PW 6
I.K. Batta. It has been proved by PW 6 I.K. Batta as Ex.
A-17. It supports the statement of PW 6 I.K. Batta.
581. The statement of PW 6 I.K. Batta is
transpiring confidence. He was Chartered Accountant
to PW 88 Ramesh Batta. PW 6 I.K. Batta has stated
that A-1 demanded money from him. When he did not
pay, A-1 met PW 88 Ramesh Batta and advised him to
change his CA. Thereafter, PW 88 changed his CA. PW
88 Ramesh Batta has admitted it, though he had given
different reasons for changing CA. PW 6 I.K. Batta had
complained against A-1. Those complaints were
handed over to the CBI by the Vigilance Department of
Income Tax.
582. Interestingly, in his cross-examination
conducted on 25.10.2013 on behalf of A-1, at page 11,
PW 6 I.K. Batta Batta was given a suggestion that
when PW 88 met A-1, A-1 informed him that he did
not demand Rs. 5,00,000/-. This witness has denied
this suggestion. What was the occasion for A-1 to meet
PW 88 Ramesh Batta and tell him that he did not
demand any money? It supports the statement of PW 6
I.K. Batta Batta that A-1 demanded money from him
on two occasions. His statement is reliable.
583. In view of the foregoing discussions, on this
sub head, this Court is of the view that the
prosecution has not been able to prove that any
"valuable things" were obtained by A-1. But, the
prosecution has been able to prove beyond reasonable
doubt that A-1 demanded gratification other than legal
remuneration from PW 6 I.K. Batta with regard to
assessment of the clients of PW 6 I.K. Batta.
584. The appellants have been charged under
Section 11 of the Act.
585. Prior to 2018, in Section 11 of the Act, the
words used were "valuable things", which have been
changed as "undue advantage" by amendment w.e.f.
26.07.2018. In the instant case, it was the charge
against A-1 that he obtained or attempted to obtain
valuable things without consideration. This was then
falling under Section 11 of the Act. The prosecution, in
the instant case, could not prove that A-1 obtained
any valuable things without consideration. But, as
stated, the prosecution has been able to prove beyond
reasonable doubt that A-1 attempted to obtain
gratification other than legal remuneration from PW 6
I.K. Batta. This offence at that relevant time was under
Section 7 of the Act, which is as hereunder prior to
amendment made in the year 2018:-
"7. Public servant taking gratification
other than legal remuneration in respect
of an official act. - Whoever, being, or
expecting to be a public servant, accepts or
obtains or agrees to accept or attempts to
obtain from any person, for himself or for any
other person, any gratification whatever,
other than legal remuneration, as a motive or
reward for doing or forbearing to do any
official act or for showing or forbearing to
show, in the exercise of his official functions,
favour or disfavour to any person or for
rendering or attempting to render any service
or disservice to any person, with the Central
Government or any State Government or
Parliament or the Legislature of any State or
with any local authority, corporation or
Government company referred to in clause (c)
of section 2, or with any public servant,
whether named or otherwise, shall be
punishable with imprisonment which shall
be not less than three years but which may
extend to seven years and shall also be liable
to fine.
Explanations. - (a) "Expecting to be a
public servant". If a person not expecting to
be in office obtains a gratification by
deceiving others into a belief that he is about
to be in office, and that he will serve them, he
may be guilty of cheating, but he is not guilty
of the offence defined in this section.
(b) "Gratification". The word
"gratification" is not restricted to pecuniary
gratifications or to gratifications estimable in
money.
(c) "Legal remuneration". The words
"legal remuneration" are not restricted to
remuneration which a public servant can
lawfully demand, but include all
remuneration which he is permitted by the
Government or the organisation, which he
serves, to accept.
(d) "A motive or reward of doing". A
person who receives a gratification as a
motive or reward for doing what he does not
intend or is not in a position to do, or has not
done, comes within this expression.
(e) Where a public servant induces a
person erroneously to believe that his
influence with the Government has obtained
a little for that person and thus induces that
person to give the public servant, money or
any other gratification as a reward for this
service, the public servant has committed an
offence under this section."
586. The prosecution has been able to prove
offence under Section 7 of the Act against A-1 and
offence under Section 7 of the Act read with Section
109 IPC against other appellants*. But the question
again is that the appellants were not charged under
Section 7 of the Act, can they be convicted under this
Section?
______________________________________________________
*(In fact, prior to amendment in the year 2018, Section 7 and 11 of the Act
were playing in different fields. Section 7 of the Act was dealing with
"gratification other than legal remuneration" in respect of official act taken
by public servants and Section 11 of the Act was dealing with regard to
public servant obtaining "valuable things". In Section 11 of the Act, prior to
amendment in the year 2018, the words used were "valuable things" and
under Section 7, the word used was "gratification other than legal
remuneration". After 2018, the situation has changed, both under Sections
7 and 11 of the Act. Now, in Section 7 as well as Section 11 of the Act, the
words used are "undue advantage". But since the case pertains to the year
2012, the instant case will be governed by the pre-amended provision.)
587. This Court while discussing the assets of
A-2 has adverted to the scope of non-framing of
charge. The Court took into consideration the
provision of Section 464 of the Code and the principle
of law as laid down in the case of Kamil (supra). The
determining factor is as to whether the appellants were
aware that they are also facing charge under Section 7
of the Act. The determining factors are "prejudice" and
"failure of justice".
588. In the chargesheet, it is specific case of the
prosecution that A-1 demanded money from various
persons as named in the chargesheet. According to the
allegations, some of whom had paid it to A-1 and some
did not. These documents were given to A-1 and other
appellants before the trial commenced. The
prosecution adduced evidence with regard to
gratification other than legal remuneration demanded
by A-1. A-1 and other appellants defended their case.
Therefore, this Court is of the view that, in fact, A-1
knew since inception of the trial that it has also been
alleged against him that he demanded gratification
other than legal remuneration in respect of official
acts. The prosecution adduced evidence on this point
and it has been defended by the appellants also.
Therefore, this Court is of the view that even if charge
under Section 7 of the Act has not been framed against
A-1, he is liable to be convicted thereunder.
589. A-1 has been sentenced to 5 years of
rigorous imprisonment and a fine of Rs. 10,000/-
under Section 11 of the Act. While convicting A-1
under Section 7 of the Act, the same sentence may be
imposed on him. Similarly, A-2, A-3 and A-4 are liable
to be convicted under Section 109 IPC read with
Section 13(2) read with Section 13(1) (e) and Section 7
of the Prevention of Corruption Act, 1988. The
sentence imposed on appellants A-2, A-3 and A-4 may
remain unaltered.
OTHER LANDS
590. The prosecution has also levelled
allegations against the appellants with regard to
property situated in Village Bagral, Mussoorie-
Dehradun Diversion Road, Dehradun as well as shops
in Medow Shopping Complex, Dehradun, but the court
below has held that the prosecution could not prove its
case with regard to these properties. It is not
challenged. Therefore, it does not require any
deliberations.
CONFISCATION OF PROPERTIES
591. In the instant case, the IO also filed an
application for attachment of the properties under
Section 3 of the Ordinance, read with Section 5(6) of
the Prevention of Corruption Act, 1988 for confiscation
of certain properties. The court on 08.10.2014 directed
that the application filed under Section 3 of the
Ordinance read with Section 5(6) of the Act be
registered separately. It was registered as
Miscellaneous Case in the court of Special Judge,
CBI/3rd Additional District Judge, Dehradun. As
stated on it, on 05.08.2015 an ad interim attachment
order was passed. By an order dated 07.04.2017, the
proceedings of the Miscellaneous Case and the case
proceeded together.
592. The Miscellaneous Case has also been
decided by the impugned judgment and order. The
court below attached and confiscated the properties.
The details of the properties attached have been given
in the impugned judgment and order, as stated
hereinbefore.
593. No arguments have been advanced on
behalf of either of the parties on this aspect. Therefore,
this Court has no reason to make any interference on
this finding of the court below.
594. In view of the foregoing discussion, this
Court is of the view that the prosecution has been able
to prove beyond reasonable doubt that A-1 had been in
possession for which A-1 could not satisfactorily
account, of pecuniary resources or properties
disproportionate to his known source of income. A-1
purchased various properties in the name of A-2, A-3
and A-4 and others. Those properties are benami
properties of A-1 (Details of the properties have already
been disclosed hereinbefore).
595. The prosecution has also been able to
prove beyond reasonable doubt that A-1 attempted to
obtain gratification other than legal remuneration from
PW 6 I.K. Batta, for the purposes as disclosed in the
earlier part of this judgment.
596. Accordingly, this Court is of the view that
the prosecution has been able to prove beyond
reasonable doubt the offence punishable under
Section 13(2) read with Section 13(1)(e) of the Act and
Section 7 of the Act against A-1.
597. The court below has sentenced A-1 under
Section 13(2) read with Section 13(1)(e) of the Act. The
sentence is in accordance with law. It is also liable to
be confirmed.
598. Having considered the entirety of the facts,
this Court is of the view that interest of justice would
be served if A-1 is sentenced to rigorous imprisonment
for a period of 5 years with a fine of Rs. 10,000/-
under Section 7 of the Act.
599. Criminal Appeal No. 164 of 2019 is liable to
be disposed of with the above modification in the
conviction and sentence.
600. When these appeals were fixed for delivery of
judgment on 08.02.2022, it was informed by A-1 by way of
filing Misc. Application No. 14551 of 2022 that A-2 has
died on 25.01.2022. On the death of an appellant, the
appeal abates unless it is continued by the relatives of the
appellant.
601. Section 394 of the Code provides for the
procedure. It is as hereunder:-
"394. Abatement of appeals. - (1) Every
appeal under Section 377 or Section 378 shall
finally abate on the death of the accused.
(2) Every other appeal under this Chapter
(except an appeal from a sentence of fine) shall
finally abate on the death of the appellant:
Provided that where the appeal is against a
conviction and sentence of death or of
imprisonment, and the appellant dies during the
pendency of the appeal, any of his near relatives
may, within thirty days of the death of the
appellant, apply to the Appellate Court for leave to
continue the appeal; and if leave is granted, the
appeal shall not abate.
Explanation. - In this section, "near relative"
means a parent, spouse, lineal descendant, brother
or sister."
602. The information of death of A-2 was placed
before the Court on the date of delievery of the judgment
on 08.02.2022. On that date, learned counsel for the CBI
submitted that although, he does not doubt the
information given by A1, but still learned counsel argued
that the factum of death of A-2 was to be verified. The CBI
was given time to file the verification report on 08.02.2022.
The CBI did not file any verification report till 24.02.2022
or till 02.03.2022, when the case was adjourned. On
02.03.2022, this Court directed the Senior
Supereintendent of Police, Aurangabad to verify the factum
of death of A-2. The Senior Superintendent of Police,
Aurangabad by his Communication No. 82 dated
04.03.2022 confirmed the death of A-2. He has also
forwarded the death certificate of A-2. Today, learned
counsel for the CBI has also confirmed the death of A-2.
According to learned counsel for the CBI, the CBI has also
verified the death of A-2 and a report has been prepared
by the CBI also. A-1 or no other person has sought leave to
continue the appeal. Therefore, the appeals filed by A-2
shall stand abated.
603. The Court has, in the judgment, discussed the
arguments as advanced on behalf of A-2. The Court has
also examined the disproportionate assets of A-2 as well as
the properties held in her name by A-1. It is the case of the
prosecution that the disproportionate assets in the name
of A-2 are, in fact, disproportionate assets of A-1.
Therefore, despite the appeals filed by A-2 having been
abated on her death, the discussion on her
disproportionate assets and properties held in her name
by A-1, have relevance and bearing in the decision of
appeals filed by other appellants.
604. This Court is also of the view that the
prosecution has been able to prove beyond reasonable
doubt that A-3 and A-4 abetted A-1, in the commission of
offence punishable under Section 13(2) read with Section
13(1) (e) and Section 7 of the Act.
605. A-3 is liable to be convicted under Section
109 IPC read with Section 13(2) read with Section
13(1)(e) read with Section 7 of the Act. A-3 may be
sentenced to undergo rigorous imprisonment for a
period of 4 years and a fine of Rs. 20,000/- under
Section 109 IPC read with Section 13(2) read with
Section 13(1)(e) read with Section 7 of the Act. In default
of payment of fine, simple imprisonment for a further
period of four months.
606. A-4 is liable to be convicted under Section
109 IPC read with Section 13(2) read with Section
13(1)(e) read with Section 7 of the Act. A-4 may be
sentenced to undergo rigorous imprisonment for a
period of 4 years and a fine of Rs. 20,000/- under
Section 109 IPC read with Section 13(2) read with
Section 13(1)(e) read with Section 7 of the Act. In
default of payment of fine, simple imprisonment for a
further period of four months.
607. Criminal Appeal Nos. 116 of 2019 and125
of 2019 are liable to be disposed of with the above
modification in the conviction and sentence.
608. In Miscellaneous Case No. 09 of 2014, the
court below has attached and confiscated the
properties under the provisions of the Ordinance. This
order is in accordance with law. This order is liable to
be upheld and confirmed.
CONCLUSION
609. The conviction of the appellant Swetabh
Suman for the offence punishable under Section 13(2)
read with Section 13(1)(e) of the Prevention of
Corruption Act, 1988 is upheld and confirmed. The
sentence imposed on the appellant Swetabh Suman
under Section 13(2) read with Section 13(1)(e) of the
Prevention of Corruption Act, 1988 is also upheld and
confirmed.
610. The appellant Swetabh Suman is convicted
under Section 7 of the Prevention of Corruption Act,
1988 and is sentenced to rigorous imprisonment for a
period of five years with a fine of Rs. 10,000/-. In
default of payment of fine, the appellant Swetabh
Suman shall undergo simple imprisonment for a
further period of two months.
611. Criminal Appeal No. 164 of 2019 is
disposed of with the above modification in the
conviction and sentence of the appellant Swetabh
Suman.
612. On the death of the appellant Gulab Devi,
the appeals filed by her, namely, Criminal Appeal Nos.
138 of 2019 and 139 of 2019 are abated.
613. The appellantsDr. Arun Kumar Singh and
Rajendra Vikram Singh are convicted under Section
109 IPC read with Section 13(2) read with Section
13(1)(e) read with Section 7 of the Prevention of
Corruption Act, 1988.
614. The appellant Dr. Arun Kumar Singh is
sentenced under Section 109 IPC read with Section
13(2) read with Section 13(1)(e) read with Section 7 of
the Prevention of Corruption Act, 1988 to undergo
rigorous imprisonment for a period of 4 years and a
fine of Rs. 20,000/-. In default of payment of fine, the
appellant Dr. Arun Kumar Singh shall undergo simple
imprisonment for a further period of four months.
615. The appellant Rajendra Vikram Singh is
sentenced under Section 109 IPC read with Section
13(2) read with Section 13(1)(e) read with Section 7 of the
Prevention of Corruption Act, 1988 to undergo rigorous
imprisonment for a period of 4 years and a fine of Rs.
20,000/-. In default of payment of fine, the appellant
Rajendra Vikram Singh shall undergo simple
imprisonment for a further period of four months.
616. Criminal Appeal Nos. 116 of 2019 and 125 of
2019 are disposed of with the above modification in the
conviction and sentence.
617. The order passed in Miscellaneous Case No.
09 of 2014 on the application under Section 3 of Criminal
Law Amendment Ordinance (No. 38) of 1944, read with
Section 5(6) of the Prevention of Corruption Act, 1988 is
upheld and confirmed.
618. Criminal Appeal Nos. 115 of 2019 is dismissed
accordingly. Criminal Appeal No. 125 of 2019 is dismissed
to the extent it challenged the judgment and order dated
13.02.2019 passed in the Miscellaneous Case. The other
directions given in the impugned judgment and order shall
remain unaltered.
619. The appellants Shwetabh Suman, Dr. Arun
Kumar Singh and Rajendra Vikram Singh are on bail.
Their bail bonds are cancelled and sureties are
discharged of their liability.They be taken into custody
to serve out the sentence imposed on them.
620. Let a copy of this judgment along with the
lower court record be forwarded to the court below for
compliance.
(Ravindra Maithani, J.)
05.03.2022
Avneet/
