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TMI Blog2022 (3) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 "A1"), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,75,000.00 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. Gulab Devi from agricultural land and family pension 35,77,000.00 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 salary income of Shri Swetabh Suman 6,88,810.00 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, Dehradun, constructed during 2001 to 2003 1,03,30,000.00 2. Land in Village Pondha, Dehradun purchased during 2002-03 22,24,400.00 3. Plot No. 10, Block-C, sector-50, Noida 18,03,920.00 4. Investment for Membership in Uttaranchal Services Housing Association, Dehradun during 2003 1,00,000.00 5. Investment for Membership in IRS Officers Coop. Housing Society, Lucknow during 2003 1,00,000.00 Total 1,45,58,320.00 Moveable Properties:- S.No. Descri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen 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. 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. 37600 2. Swetabh Suman (A-1) opened a PPF A/c 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as having balance of Rs. 9030 as on 05.08.2005. 229331 3. Swetabh Suman (A-1) has made 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/- 768500 4. Swetabh Suman (A-1) still possess the aforesaid revolver and Rifle as such the amount has been taken into account. 46086 5. During search, an Inventory memo was 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/- 1386060 6. During search cash amount of Rs. 1,00,000/- was also recovered. However, out of the said amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 7,891/- from M/s Ranchi Gun House, Ranchi 7891 5. Swetabh Suman (A-1) paid donations to 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 56100 6. Swetabh Suman (A-1) paid an amount of 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 39015 7. Swetabh Suman (A-1) paid accommodation charges of Rs. 3762/- to JUSCO, Jamshedpur. 3762 8. Swetabh Suman (A-1) paid an amount of Rs. 10,000/- to M/s Dee Dee Motors, Dehradun for repair of his car No. BR-17C-0021 10000 9. Swetabh Suman (A-1) paid an amount of Rs. 72,000/- to M/s President Travels, Dehradun for getting air journey tickets. 72000 10. Swetabh Suman (A-1) paid an amount of Rs. 4,798/- as food expenses to ITBP Mess, Dehradun 4798 11. The approximate petrol expenses of 12,360/- worked out according to the meter reading i.e. 3094 recorded at the time of search has been taken as expenses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % 7558295 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 A1 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. No. Description Amount (Rs.) 1. (Statement B) Assets at the end of the check period 39333166 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) (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sit 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, P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abadwal, 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 Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dra 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... munication 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 scen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstitute 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 extrajudicial 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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. Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Susp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used, 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir 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, centring around 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 obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dividends recd from various investments 2,27,035 6,49,193 5,80,001 4. Interest from Bank and PPF 3,64,918 3,64,918 3,64,918 24,91,068 29,33,226 28,44,034 STATEMENT 'D'(EXPENDITURE DURING THE CHECK PERIOD) SR.NO. DESCRIPTION AMOUNT AS PER CBI CALCULATION AMOUNT AS PER A-1 TRIAL COURT CALCULATION 1. Kitchen expenses 6,59,429 3,30,000 6,59,429 2. Insurance premium Policy 2,49,176 2,49,176 2,49,176 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 BR17C0021 10,000 0 10,000 9. Travel Charges 72,000 0 10,000 10. Mess and Food Charges 4,798 0 4,798 11. Petrol Expenses 12,360 0 0 12. Servant Salary 37,500 0 0 11,82,031 6,85,944 11,32,171 COMPUTATION OF DISPROPORTIONATE ASSETS OF A-1 SR.NO. DESCRIPTION AMOUNT AS PER CBI CALCULATION AMOUNT AS PER A-1 TRIAL COURT CALCULATI ON 1. ASSETS AT THE END OF CHECK PERIOD (Statement B) 42,94,534 20,96,536 42,19,535 2. ASSETS AT THE B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigating 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.A423 as well as the jewellery valuation recorded Ex.A545 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 mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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 jewellery were 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, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar. 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty 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 ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplanation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W 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. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 grand sons 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." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ughter 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 applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. A194. 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. A194 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 3-11986 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejudice 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, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. A349. Therefore, it is abundantly clear that during the course of trial, A-2 was made aware that the certificates with regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, 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 A2'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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution 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 abunda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh (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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 A4 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 cos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence 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 benami property of A-1. The court below has rightly concluded so. Discussion 328. There are two persons, who are also related to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inally 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii. 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 oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated 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 A3. 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 Um ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.2001 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Form 16 ii. receipt of rebate under Section 80G iii. LIC receipt iv. infrastructure photocopy 4. (43A/6) 2002-03 52,000- House Property (monastery) 85,000-Agriculture Computation of total income; proof of agricultural land 2002-03 (43A/51) 1,31,093 - salary 1,000- examination remuneration i. Form 16 ii. LIC receipt iii. ULIP receipt 5. (43A/ 15) 2004-05 52,500- House Property Nil -Agriculture Statement of computation of tax; balance sheet 2004-05 (43A/35) 2,65,069-salary and 23,253 - Jeevan Siralsja i. Form 16 ii. Receipt of Jeevan Suraksha iii. LIC receipt 6. 1999-2000 (43A/66) 1,12,999 - salary i. Form 16 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. A497. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 dou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 signe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 A1 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 A1. 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear signature of Abhay Kumar Singh. 455. Interestingly, in his examination under Section 313 of the Code, in answer to question 548, A1 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawn 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 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 he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, A2 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 maintaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal 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, Luc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 20112015. 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 appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 assum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst 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 A1 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, A1 demanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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? 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 speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man. 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. Crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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