TMI Blog2022 (3) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the common course of natural events and human conduct has a big role to play to make inferences by the court. It helps the court to believe existence or non-existence of any fact or to consider its existence so probable that a prudent man ought to act upon the situation that it exists. Source of Income of Public Servant or Ostensible Owner - HELD THAT:- In the absence of direct financial links, the source of income of ostensible owner is not to be examined, it would defeat the very purpose of enacting the Act. If a public servant by any means avoids any direct financial link and acquires property in the name of others, in such cases, if the source of income of ostensible owner is not examined, the matter cannot be investigated any further. Therefore, in such cases, where the public servant is charged with disproportionate assets along with non public servant and it is alleged that the properties were acquired in the name of non public servant, the court must examine the source of purchase money. It means as to how the ostensible owner acquired the money to purchase the property. The court below did not adopt any erroneous approach. The court below while examining the sourc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant Swetabh Suman for the offence punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 is upheld and confirmed. The sentence imposed on the appellant Swetabh Suman under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 is also upheld and confirmed - the appellant Swetabh Suman is convicted under Section 7 of the Prevention of Corruption Act, 1988 and is sentenced to rigorous imprisonment for a period of five years with a fine of ₹ 10,000/-. In default of payment of fine, the appellant Swetabh Suman shall undergo simple imprisonment for a further period of two months. Appeal disposed off. - Criminal Appeal No. 164 of 2019, Criminal Appeal No. 115 of 2019, Criminal Appeal No. 116 of 2019. Criminal Appeal No. 125 of 2019, Criminal Appeal No. 138 of 2019, Criminal Appeal No. 139 of 2019 - - - Dated:- 5-3-2022 - HON BLE RAVINDRA MAITHANI, J. Present:- Mr. Vikram Chaudhary, Senior Advocate assisted by Mr. Rishi Sehgal and Mr. Priyanshu Gairola, Advocates for the appellant. Mr. N. Hariharan, Senior Advocate assisted by Mr. Ramji Srivastava, Advocate for the appellant. Mr. V.B.S. Negi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the Act, and sentenced to rigorous imprisonment for a period of 4 years and a fine of ₹ 20,000/-. In default of payment of fine, simple imprisonment for a further period of four months. 7. By the impugned judgment and order, the following properties have been confiscated in favour of the Government of India under the provisions of Criminal Law Amendment Ordinance (No. 38) of 1944( the Ordinance ), read with Section 5(6) of the Prevention of Corruption Act, 1988:- (i) ₹ 1,00,000/- cash, which were recovered from the search of the house of A-1. (ii) House No. 169/21, Rajpur Road, Dehradun, registered in the name of A-2. (iii) Plot No. 10, Block C, Sector 50, Noida, registered in the name of A-2. (iv) Honda City Car bearing registration No. DL 2C F 0021, registered in the name of A-2. (v) Hotel Uruvela International, Bodhgaya, Bihar, registered in the name of A-3. (vi) Flat No. B-122, Panchwati Apartment, Sector 62, Noida, registered in the name of A-4. (vii) Flat No. 303, IRS, Officers Society, V-33, Vatayan Nehru Enclave, Gomtinagar, Lucknow. (viii) Land situated at Village Pondha, which were purchased in the name of Abhay K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) A-3 is the husband of the sister of A-1. He at the relevant time was Reader in the Magadh University, Bodhgaya. (iv) A-4 at the relevant time was working in the Education Department in Dehradun Prosecution Case: 13. The CBI, Dehradun received a reliable source information that A-1, working as Additional Commissioner, Income Tax, Jamshedpur was leading a luxurious life and had amassed assets in his own name, in the names of A-2 and other family members and benamis between 1.4.1997 and 31.03.2004, which prima facie appears to be disproportionate to his known source of income. The check period in the FIR was between 01.04.1997 and 31.03.2004. The properties, which were mentioned in the source information were: (i) Plot No. 169/21, Rajpur Road, Dehradun measuring 752.50 sq.mts. in the name of A-2 and sister Smt. Suniti Suman. A very huge house was constructed on it in the year 2001-03 at the cost of more than Rs. one crore; (ii) Agricultural land measuring 14.435 acres in village Pondha, Dehradun in the name of different persons purchased by A-1 during July, 2002 to March, 2003 for a total amount of ₹ 18,17,500/-, whereas the market value of the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. Description Value (In Rs.) 1. Balance in SB A/c No. 2723 in Dena Bank, Balbir Road, Dehradun in the name of Smt. Gulab Devi 1,04,879.77 2. Balance in SB A/C No. 22148 in Central Bank of India, Gaya Branch in the name of Dr Baijnath Kumar Singh and Smt. Gulab Devi 802.80 3. Balance in SB A/c No. 2380 in Central Bank of India, Gaya Branch in the name of Dr. Baijnath Kumar Singh and Smt. Gulab Devi 8,188.08 4. Balance in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iption was given by the IO in the chargesheet, mainly disclosing as hereunder:- (i) A number of complaints were received against A-1 while he was posted at Dehradun. (ii) When these complaints were under scrutiny, the files relating to these complaints were removed/stolen by A-1 to avoid legal/disciplinary action against him. (iii) During the search in the instant matter, these files were recovered from the residential premises of A-1. The files were handed over to the local police by the CBI. The police after investigation had submitted a chargesheet against A-1 under Section 380, 411 IPC. (iv) A-1 had no immovable property in his name, except ancestral property. 16. The IO also made statements A , B , C and D of A-1. It is reproduced as hereunder:- Statement- A (Assets at the beginning of check period:01.04.97) Immovable Properties:- Nil Movable Properties:- S.No. Description Amount (Rs.) 1. Swetabh Suman (A-1) had invested ₹ 13,500/- in purchase of 300 shares of Bank of India, ₹ 19,000/- in the various UTI Schemes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounts has emerged as ₹ 10,27,619/- 1027619 2. Swetabh Suman (A-1) has been found to be maintaining various bank accounts during the check period i.e. SB A/c No. 01190035817 at SBI, Jamshedpur, opened on 22.08.1996, having amount of ₹ 1,44,580/-, a/c no. 01190/082495 at SBI, Mujafar Nagar Branch, opened on 22.06.1999, this a/c was subsequently transferred to SBI, Main Branch, Dehradun on 17.10.2000 where it was renumbered as a/c No. 0119114111. It was having amount of ₹ 2617/-. The A/c No. 01190006913 at SBI, Doranda, Ranchi was having an amount of ₹ 72,919/-. Account opened on 12.08.1998 was having balance of ₹ 185/- and a/c No. C-1088 at SBI, Dhanbad, opened on 04.07.1991 was having balance of ₹ 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 ₹ 768500/- 768500 4. Swetabh Suman (A-1) stil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly, he received interests from his bank account i.e. ₹ 1246/- from A/c No. 01190035817 at SBI, Jamshedpur, ₹ 10349/- from A/c No. 01190035817 at SBI, Jamshedpur, ₹ 10349 from A/c No. 0119114111 at SBI, Main Branch, Dehradun, ₹ 710/- from A/c No. 10579 maintained at Central Bank of India, Bodhgaya, Bihar, ₹ 4357/- from A/c No. C/1088 at SBI, Dhanbad Branch, Ranchi and ₹ 8739/- from A/c No. 1190006913 at SBI, Doranda Branch, Ranchi. 364918 Total 2491068 Statement- D (expenditure during the check period) S.No. Description Amount (Rs.) 1. Swetabh Suman (A-1) has received a total net salary of ₹ 18,79,115/- and gross salary of ₹ 21,00,992/- during the check period. Accordingly, the one third of the said amount i.e. ₹ 6,59,429/- of gross salary after income tax deduction of ₹ 1,22,703/- has been taken towards the kitchen expenses, as per the yardstick adopted in DA cases. 659429 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omestic help of Swetabh Suman (A-1), he received a sum of ₹ 37,500/- during the period from June 1999 to July 2005 @ ₹ 500/- per month as his salary from Sh. Swetabh Suman, hence it has been taken as his servant salary expenses. 37500 Total 1182031 COMPUTATION OF DISPROPORTIONATE ASSETS OF SWETABH SUMAN (A-1) S. No. Description Amount (Rs.) 1. Assets at the end of the check period (Statement B) 4294534 2. Assets at the beginning of check period (Statement A) 181192 3. Assets acquired during the check period (B-A) 4113342 4. Expenses during the check period (Statement D) 1182031 5. Total assets expenses during the check period (B-A+D) 5295373 6. Income during the check period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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) ₹ 4294534 2. Assets at the end of check period of Smt. Gulab Devi (A-2) (As per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and the appellants were summoned to answer the accusations. 23. A-1 was charged on 12.09.2012 for the offences punishable under Section 13(2) read with 13(1)(e) and Section 11 of the Act. 24. A-2 was charged on 21.11.1012 and A-3 and A-4 were charged on 11.09.2012 for the offences punishable under Section 109 IPC read with Section 13(2) read with 13(1)(e) and Section 11 of the Act. The appellants denied the charge and claimed trial. 25. In order to prove its case, the prosecution examined as many as 255 witnesses. They may be categorized under different categories, which are as follows:- (A) Witnesses with regard to salary of A-1 :- PW 68 Rajnish Rastogi, PW 112 Naveen Kumar, PW 113 Jageshwar Prasad, PW 141 Manoj Kumar, PW 151 G. Guruswami, PW 158 Rahul Gautam, PW 166 Srikant Prasad Singh, PW 171 Madan Mohan Prasad Sinha, PW 201 Harendra Kumar Verma, PW 214 Shashi Ranjan and PW 228 Balliram Rajak PW 249 Asit Kumar Kanjilal. (B) Witnesses with regard to account of A-1:- PW 72 Subodh Chandra, PW 73 Suresh Chand, PW 77 Satendra Nath Upadhyay, PW 80 Rajeev Ranjan, PW 111 Narendra Kumar, PW 120 S.P. Sarkar, PW 203 Samir Kumar Maiti and PW 213 Y.S. Bisht. (C) W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... un Kumar Sharma, PW 56 Som Prakash, PW 58 Awdhesh Kumar, PW 62 Arun Kumar, PW 66 Rajendra Singh, PW 69 Sunil Goyal, PW 85 Vinay Agarwal, PW 88 Ramesh Batta,PW 98 Avnish Kumar Deshwal, PW 99 Rakesh Sharma, PW 103 Pravin Gupta, PW 104 Pramod Kumar, PW 114 R.P. Ishwaran, PW 125 G.P. Singh, PW 128 Shivdev Singh Marya, PW 132 Santosh Deep, PW 136 Anil Goyal, PW 138 Ashok Kumar Singh, PW 149 A.K. Chaddha, PW 150 S.P. Garg, PW 153 Amrit Sain Gupta, PW 187 D.B. Gupta and PW 207 Vivek Kumar. (M) Witnesses with regard to Noida Plot :- PW 89 Sri Rajendra Singh, PW 157 Bhanu Pratap Singh, PW 162 Rajendra Kumar and PW 164 Sanjay Kumar Jain (he is witness to Noida flat also). (N) Witnesses with regard to Noida Flat:- PW 20 Vijay Keerti, PW 43 Vivek Pokhariyal, PW 70 KambarMurtaza, PW 78 Smt. Shashi Prabha Saxena, PW 86 Anil Jindal, PW 87 Akhil Mahajan, PW 102 Rajiv Mittal, PW 118 Rakesh Kumar Agarwal, PW 119 Trilok Singh, PW 123 Mahesh Garg, PW 124 Navin Chandra Kabadwal, PW 129 Surendra Kumar, PW 164 Sanjay Kumar Jain (he is witness to Noida plot also), PW 174 Deepak Mehta, PW 175 Dalip Kumar, PW 194 Suresh Kumar Adya, PW 202 Dharmendra Kumar Gupta and PW 236 Subhashish Chakravarti. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veen Singh, PW 220 Anil Mal, PW 233 Sunil Kumar Upadhyaya and PW 253 Anil Kumar Singh. (X) PW 169 Chandra Mohan Prasad and PW 247 Ramadhar Singh have stated about the Ambassador car. (Y) PW 12 Narendra Rana has stated about the Arvind Society. (Z) PW 21 Rajnish Mohan Singh has stated about the prosecution sanction. (AA) Other witnesses:- PW 13 Amarnath Ahuja, PW 19 Ashok Kashyap, PW 127 S.K. Sharma, PW 131 Uday Shankar Sharma, PW 133 Veerbhan, PW 134 B.P. Pandey, PW 135 Ram Vilas, PW 146 Vinod Kumar Singh, PW 155 Chandrashekhar, PW 156 Yogesh Tripathi, PW 165 P. Venugopal Rao, PW 172 Uday Shankar Tirkha, PW 176 Mohd. Hashmatulla, PW 177 Constable Ranveer Singh, PW 178 Santan Ram, PW 181 Amitabh Rawat, PW 182 Vinod Kumar Singh, PW 188 P.S. Kochar, PW 218 Kamal Kishore Singh, PW 221 Rajendra Prasad Singh, PW 223 Kailash Chand Mishra, PW 224 Shivaji A.B., PW 225 Vijay Kumar Sinha, PW 232 Anuradha Garg, PW 235 B.K. Todiwala, PW 237 Jagdish Singh, PW 243 Sridhar Ayyar, PW 250 Surendra Kumar Rohilla (He is the IO; referred to earlier also under Pondha land head) and PW 254 Abhinitam Upadhyaya. 26. The appellants have been examined under Section 313 of the Code o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tructed by A-1 from PW 69 Sunil Goyal. A-4 has expressed ignorance about the statements of PW 86 Anil Jindal, PW 87 Akhil Mahajan, PW 102 Rajeev Mital and PW 123 Mahesh Garg. 31. The examination of the appellants under Section 313 of the Code is quite extensive. They have been asked to explain the circumstances appearing against them in the evidence (despite that on behalf of A-2, it has been argued that with regard to partition of HUF, A-2 has not been examined under Section 313 of the Code, therefore, that part of material produced by the prosecution cannot be taken into consideration. This will be considered at an appropriate stage.) 32. In defence, the appellants examined eight witnesses, namely, DW 1 Alok Kumar Jain, DW 2 Dr. P.V.K. Prasad, DW 3 Neeta Agarwal, DW 4 Rajesh Kumar, DW 5 Harinam Singh, DW 6 T.N. Singh, DW 7 Manoj Kumar and DW 8 Sachin Kumar Rathore. 33. DW1 Alok Kumar Jain and DW 6 T.N. Singh have stated about some documents relating to USHA property. DW 2 Dr. P.V.K. Prasad has stated about a communication received by him for conducting an inquiry with regard to the complaint made by I.K. Batta. DW 3 Neeta Agarwal is a senior Income Tax Officer. She has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is actuated with malice both in law as well as fact. It took five years to file a chargesheet by enhancing the number of properties as well as the check period. In support of his contention, learned Senior Counsel placed reliance on the principle of law as laid down in the case of P. Sirajuddin v. State of Madras, (1970) 1 SCC 595, Central Bureau of Investigation v. Ashok Kumar Aggarwal, (2014) 14 SCC 295 and Vineet Narain and others v. Union of India and another, (1998) 1 SCC 226. In the case of P. Sirajuddin (supra), the Hon ble Supreme Court observed Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. In the case of Vineet Narain(supra), the Hon ble Supreme Court, inter alia, observed that the CBI Manual requires strict compliance. The Hon ble Supreme Court observed as hereunder:- 58. (I)(12) The CBI Manual based on statutory provisions of CrPC provides essential guidelines for the CBI's funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the law. In support of this contention, learned Senior Counsel placed reliance in the case of P. Nallamal and others v. State represented by Inspector of Police, (1999) 6 SCC 559. In the case of P. Nallamal (supra), the Hon ble Supreme Court illustratively dealt with the provisions of Section 107 IPC and observed as hereunder:- 24. Shri Shanti Bhushan cited certain illustrations which, according to us, would amplify the cases of abetments fitting with each of the three clauses in Section 107 of the Penal Code vis-a-vis Section 13(1)(e) of the PC Act. The first illustration cited is this: If A, a close relative of the public servant tells him of how other public servants have become more wealthy by receiving bribes and A persuades the public servant to do the same in order to become rich and the public servant acts accordingly. If it is a proved position there cannot be any doubt that A has abetted the offence by instigation. Next illustration is this: Four persons including the public servant decide to raise a bulk amount through bribery and the remaining persons prompt the public servant to keep such money in their names. If this is a prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the context of Section 5(1)(d) obtaining goods on credit cannot be held to amount to obtaining pecuniary advantage. As we have said, if there is an agreement between the officer and the trader that the officer is not expected to pay for the goods then there is no doubt that this would amount to obtaining pecuniary advantage, but if there is no such agreement and the officer does not pay it cannot be said that he has obtained any pecuniary advantage. He does not act in any manner different from a non-official who obtains things on credit and then refuses to pay . (x) The trial court had proceeded on the wrong assumption, when it observed that first and foremost the source of income of A-2 was to be examined. The trial court decided the case on a wholly erroneous perspective, which had no relevance to the scope of the case set up by the CBI. (xi) The Trial Court misjudged the issue and erroneously treated the assets of A-2, A-3 and A-4 and others as benami assets of A-1, whereas the scope of the charges was only as to whether A-1 siphoned the money to A-2, A-3, A-4 and other co-accused. (xii) One of the ingredients of any benami assets is the source of money, which s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and evidence on aspects with vital bearing thereon lacked certitude, precision and unambiguity. 22. In view of the materials on record and the state of law as above, we are thus of the considered opinion that the prosecution has failed to prove beyond all reasonable doubt the charge of criminal misconduct under Section 13(1)(e) of the Act and punishable under Section 13(2) thereof against the appellant. He is thus entitled to the benefit of doubt. The prosecution to succeed in a criminal trial has to pitch its case beyond all reasonable doubt and lodge it in the realm of must be true category and not rest contended by leaving it in the domain of may be true . We are thus left unpersuaded by the charge laid by the prosecution and the adjudications undertaken by the courts below. The conviction and sentence, thus is set aside. The appeal is allowed. In the case of K. Goverdhan (supra), the Hon ble Andhra Pradesh High Court, inter alia, observed that It is pertinent to mention here that even assuming that the ostensible owners in question do not have any known sources of income this in itself cannot be a conclusive circumstance for holding that the property held by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, it any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale. Learned Senior Counsel also referred to the judgment in the case of MangathaiAmmal (Died) through LRs and Others v. Rajeswari and others, 2019 SCC OnLine SC 717.In the case of Mangathai Ammal (supra) , the Hon ble Supreme Court followed the principle of law as laid down in the case of Jaydayal Poddar (supra) and held as hereunder:- 28. While considering the issue involved in the present appeal viz. whether the transactions/Sale Deeds in favour of defendant no. 1 can be said to be benami transactions or not, the law on the benami transactions is required to be considered and few decisions of this Court on the aforesaid are required to be referred to. 29. In the case of JaydayalPoddar (Supra) it is specifically observed and held by this Court that the burden of proving that a particular sale is benami and the appare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale. ( JaydayalPoddar v. Bibi Hazra (supra), SCC p. 7, para 6) (xv) In the instant case, nothing has been proved. There has been no financial link between A-1 and other appellants. (xvi) A-2 is a rich lady. She purchased properties from her own source. She revealed her source to the IO, who did not take them into consideration. (xvii) A-3 has also submitted his income tax returns and balance sheet revealing the income, but it was not considered by the IO. A-3 had source of income and he explained it by preponderance of probabilities. (xviii) A-2 and A-3 discharged their onus. Post sale, possession of the properties purchased by A-2 and A-3 was with them. There is no conduct as well, which could link A-1 with other co-accused. (xix) A-4 sold his shares and purchased the property at Noida. A-1 in no manner whatsoever is related to it. It is prejudiced investigation, which prevailed during trial also to make the court believe that offences were commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f certain offences, the burden of proving a particular fact in issue may be laid by law upon the accused. The burden resting on the accused in such cases is, however, not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities. The ingredients of the offence of criminal misconduct under Section 5(2) read with Section 5(1)(e) are the possession of pecuniary resources or property disproportionate to the known sources of income for which the public servant cannot satisfactorily account. To substantiate the charge, the prosecution must prove the following facts before it can bring a case under Section 5(1)(e), namely, (1) it must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his known sources of income i.e. known to the prosecution, and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence of criminal misconduct under Section 5(1)(e) is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit, to find out the truth. It means on one hand, no innocent man should be punished but on the other hand, to see no person committing an offence should get scotfree. If in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. 43. In the case of Raja Ram (supra), the Hon ble Supreme Court observed that The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. In the case of Sunil Rai (supra), the Hon ble Supreme Court, inter alia, observed that on the materials on record, there may be some suspicion against the accused, but as is often said, suspicion, however strong, cannot take place of proof . In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly little experience during that period; that they had submitted their income tax returns for a consolidated period of three years in 1982 and therefore the case of the appellant that he got a loan of ₹ 20,000 from Dr RavindraReddi is not acceptable. This reasoning is based on mere conjunctures or surmise. As repeatedly pointed out earlier, the raid was in 1983 and so, there could not be any conceivable reason even to entertain any suspicion or surmise. 47. Reference is made to the case of J. Jayalalitha (supra) to argue that the facts in the case of J. Jayalalitha (supra) were quite different because in that case ITR was submitted post lodging of the FIR. Therefore, they were doubted. It is argued that even ITRs were not totally discarded in the case of J. Jayalalitha (supra). Learned counsel appearing for the appellants would argue that the circumstances in the case of J. Jayalalitha (supra) were different because in that case there were witnesses to depose before the court that they deposited cash in the banks under the direction of the accused. It is argued that in the instant case, there is no financial link between A-1 and other appellants and even there is no such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court discussed the provision of Section 313 of the Code and observed The circumstances which are not put to the accused in his examination under Section 313 CrPC, cannot be used against him and must be excluded from consideration . 51. In the case of Smt. Nilofer I. Singh (supra), the issue was with regard to determination of fair market value for the purposes of Section 55-A of the Income Tax Act, 1961. The Hon ble Delhi High Court observed that For the purposes of computing capital gains in such a case as the one before us, there is no necessity for computing the fair market value and, therefore, the Assessing Officer could not have referred the matter to the Valuation Officers . There was another issue with regard to bad debts. On this point, the Hon ble Delhi High Court, observed that section 36(1)(vii) of the said Act clearly stipulates that the said deduction is allowed provided the bad debt is written off as irrecoverable in the accounts of the assessee for the concerned previous year. This is, however, subject to the provision of subsection (2) of section 36 of the Act. 52. Learned Senior Counsel for A-1 also argued with regard to each property. Those submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 107 IPC.Learned Senior Counsel also referred to the principle of law as laid down in the case of P. Nallamal (supra), which has already been referred to, in the earlier part of this judgment. (v) The trial court in para 1030 and 1031 wrongly took into notice the aspects of conspiracy. Conspiracy is not a charge against A-3. 56. Learned Senior Counsel also argued with regard to the individual property in the name of A-3. Those arguments would be referred to at an appropriate place, when the property will be discussed. On behalf of A-4 57. Learned Senior Counsel Mr. Vijay Bahadur Singh Negi argued on behalf of A-4. It is argued that A4 is not named in the FIR. A power of attorney was recovered from the house where Arunabh Suman was the tenant. That is how A-4 was made an accused. Learned Senior Counsel would submit that no case is made out against A-4. He would raise the following arguments also in support of his contention:- (i) A-4 purchased the property from its lawful owner, who has proved so. (ii) Arunabh Suman was never examined by the CBI. He was neither made accused nor witness. The document, which the CBI alleged to be a power of attorney i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te individuals are being prosecuted. It is settled law that private persons may also be prosecuted under Section 109 IPC. (iv) The check period may be fixed by the IO. In the instant case, check period was extended till the date when the search was carried out on 05.08.2005. Many other properties also came to light during investigation. It is a complex case. IO had to examine witnesses, documents collected, forensic evidence was also obtained. Transactions relating to properties took place at various places, therefore, it took time to file the chargesheet. Even, it is argued that there is no time limit within which chargehseet is required to be submitted. (v) In the case like the instant one, the word prove has different connotation because such offences are committed with great caution. The natural presumption, natural events and human conduct are to be taken into consideration by the court to raise permissible presumptions, as held by the Hon ble Supreme Court in the case of K. Ponnuswamy v. State of T.N. by Inspector of Police, Directorate of Vigilance and Anti-Corruption, South Range, Trichy, 2001 (6) SCC 674 . Reference has been made to para 27 of the judgment, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existence of any fact which it thinks likely to have happened having regard to the natural course of event, human conduct and public and private business, in relation to the facts of each case. (vi) In the case of J. Jayalalitha (supra), the Hon ble Supreme Court relied on the principle of law as laid down in the case of K. Ponnuswamy (supra). While appreciating evidence in such cases, the attending circumstances are also to be seen. (vii) A woman cannot be Karta of HUF because she could not have been a coparcener prior to 2005. Reliance has been placed to the judgment in the case of Commissioner of Income Tax v. Seth Govindram Sugar Mills, AIR 1966 SC 24. (viii) A- 2 had no income as claimed by her. (ix) The principle of law as laid down in the case of Jaydayal Poddar(supra) was in a civil case. In a criminal case, the principles as laid down in Jaydayal Poddar s case (supra) will not apply. Jaydayal Poddar s case (supra) has further been explained in the case of K. Ponnuswamy (supra). (x) The appellants were charged under Section 109 IPC, which punishes for abetment as defined under Section 107 IPC. The appellants have not been charged for one part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nishable under the PC Act can be tried only by the Special Judge, it is inconceivable that the abettor or the conspirator can be delinked from the delinquent public servant for the purpose of trial of the offence. If a non-public servant is also a member of the criminal conspiracy for a public servant to commit any offence under the PC Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the Court of a Special Judge having jurisdiction in the matter. 62. A few propositions of law have been argued on behalf of the appellants. It is argued that the prosecution has to prove its case beyond reasonable doubt and once the prosecution succeeds in doing so, the appellants may discharge the onus merely by the standard of preponderance of probabilities. 63. In a criminal case, it is a basic principle that it is the prosecution, which has to prove its case beyond reasonable doubt. The words beyond reasonable doubt have been interpreted umpteen times by the Hon ble Supreme Court. Even in the case of presumption of guilt , it is settled law that fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of a prudent man the fact is not proved i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by a prudent man . 65. When interference from basic facts is not balanced orguided, it may lead to conjectures and surmises or speculations. In the case of Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi and others, (1991) 2 SCC 716 , the Hon ble Supreme Court observed In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts. 24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of K. Ponnuswamy (supra), the natural presumptions considering the common course of natural events and human conduct has a big role to play to make inferences by the court. It helps the court to believe existence or non-existence of any fact or to consider its existence so probable that a prudent man ought to act upon the situation that it exists. In the case of J. Jayalalitha (supra), the Hon ble Supreme Court referred to the judgment in the case of K. Ponnuswamy (supra) and observed as hereunder:- 234. In K. Ponnuswamy v. State of T.N. [K. Ponnuswamy v. State of T.N., (2001) 6 SCC 674 : 2001 SCC (Cri) 1209] , this Court referred to the definition of the word proved in Section 3 of the Evidence Act, 1872 and also Section 114 thereof. While noting that in terms thereof, a fact is said to be proved when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man, under the circumstances of the particular case, ought to act upon this supposition that it exists. It reflected also on the permissible presumption envisaged under the statute, with regard to the existence of any fact which a court is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e position of the parties and the relationship, it any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale. 75. The Hon ble Supreme Court further observed that the above indicia are not exhaustive. Nevertheless, the source, whence the purchase money came is by far the most important test for determining whether the sale standing in the name of one person is for the benefit of another. 76. It is true that the court below investigated the source of money of the ostensible owners. This has been termed as erroneous approach by the learned counsel appearing for the appellants. It has been so argued at the strength that the source of public servant has to be seen to connect the property in the name of ostensible owner. 77. On behalf of the appellants, reference has been made to the judgment in the case of K. Govardhan (supra). In para 21 of its judgment, the Hon ble Andhra Pradesh High Court has observed (a part of it has also been quoted hereinbefore) Mere fact that the ostensible owner had no source of income in itself would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of some non public servant, which at the first instance reflects that the source of income must have been derived from such non public servant. In such case, firstly, it has to be analyzed whether such non public servant had any source of income to acquire such property. In case it is found that such non public servant had enough source of income to acquire such property, there remains less to investigate further. But, if it is found that such non public servant did not have enough source of income to acquire such property, then the matter needs further investigation and if it is connected with the public servant, such public servant may be held guilty for holding property in the name of others. 81. In fact, in the case of JaydayalPoddar (supra), in paragraph 7, the Hon ble Supreme Court has categorically held that the source whence the purchase money came is most important test. Not only this, in para 8 of the judgment, in the case of JaydayalPoddar (supra), the Hon ble Supreme Court discussed the source of income with the ostensible owner to record a conclusion with regard to benami transactions. 82. On behalf of the CBI, it is argued that the principle of law as la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have already been accepted by the income tax department, it would be sufficient proof of the source of income. This argument has less merit for acceptance. 86. This is a criminal trial. The income as shown in the income tax return has different connotations for the purposes of collecting taxes and for no other purpose. In the criminal proceeding under the Act, the public servant has to account for the property. If a non public servant is also prosecuted with the aid of Section 109 IPC along with the public servant, such non public servant has also to account for the properties held by him in the criminal trial. 87. On behalf of the appellants, reference has been made to the judgment in the case of M. Krishna Reddy (supra). In that case, ITRs were not considered on the ground that the person who submitted the ITRs had little experience. The Hon ble Supreme Court, under the facts and circumstances of the case held that such finding was based on mere conjectures and surmises. It may be noted that in the case of J. Jayalalitha (supra) also relying on the principles as laid down in the case of M. Krishna Reddy (supra), it was argued (paras 70, 71 and 92) that ITR, being public doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng thereto have been filed/passed after the charge-sheet had been submitted. Significantly, there is a charge of conspiracy and abetment against the accused persons. In the overall perspective therefore neither the income tax returns nor the orders passed in the proceedings relatable thereto, either definitively attest the lawfulness of the sources of income of the accused persons or are of any avail to them to satisfactorily account the disproportionateness of their pecuniary resources and properties as mandated by Section 13(1)(e) of the Act. 88. To re-iterate, the Hon ble Supreme Court in para 196 of the judgment in the case of J. Jayalalitha (supra) has observed that It was underlined that the property in the name of the income tax assessee itself cannot be a ground to hold that it actually belongs to such an assessee and that if this proposition was accepted, it would lead to disastrous consequences . Investigation without Preliminary Inquiry 89. An argument has been advanced that the investigation in the instant case has been faulty since its inception because no preliminary inquiry was conducted, as provided under Chapter 9 of the CBI Manual; chargesheet has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antial evidence is not important . The court also observed that criminal conspiracy is also a part of abetment . These propositions may not be doubted. But what is required to be examined is as to whether it is a case of abetment by intentional aid alone as argued on behalf of the appellants. 95. Section 107 IPC defines abetment . It is as hereunder:- 107. Abetment of a thing.- A person abets the doing of a thing, who- First .-Instigates any person to do that thing; or Secondly .-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly .-Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. 96. A bare perusal of the above definition reveals that abetment may be by any of the modes as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to the statements A, B, C and D of A-1 and disproportionate assets held by him in his name. 104. Under certain heads A-1 has objections. According to A-1, he did not have any assets disproportionate to his known source of income tax. The calculation made by CBI for evaluating the assets of A-1 has been questioned. 105. The following chart reveals the statements of A , B , C and D with computation of disproportionate asset as per the court below, the CBI and as per A-1. COMPUTATION OF DISPROPORTIONATE ASSETS OF SWETABH SUMAN (A-1) STATEMENT A (ASSETS AT THE BEGINNING OF CHECK PERIOD 01.04.1997) SR.NO. DESCRIPTION AMOUNT AS PER CBI CALCULATION AMOUNT AS PER A-1 TRIAL COURT CALCULATION 1. Investments 37,600 37,600 37,600 2. PPF Account 83,704 83,704 83,704 3. Bank Accounts 13,802 2,35,332 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. DISPROPORTIONAT E ASSETS (B-A+D-C) 28,04,305 -5,53,468 23,26,480 Statement A of A-1 106. There are four heads in the statement A of A-1. Objections have been raised with regard to item at Sr. no. 3 bank accounts. In the chargesheet, CBI has recorded this amount as ₹ 13,802/-. In the FIR, the likely savings of A-1 has been recorded as ₹ 4,02,722/-. 107. On behalf of A-1, there are following objections; (1) A-1 had received salary ₹ 5,36,311/- till 01.04.1997. (2) The savings could have been assessed by deducting 1/3 of total salary which comes around ₹ 4 Lakhs.This should have been taken as the savings of A-1 in the banks accounts at Sr. No. 3 of the statement A. (3) The IO wrongly reduced this amount to ₹ 13802/-. (4) In fact, in the written arguments on behalf of A-1, it is also recorded that the FIR is an extremely valuable document and valuable piece of evidence. In support of it, reference has been made to the judgment in the case of Thulia Kali (supra). (5) The IO never tried to ascertain as to what was total balance in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the house of A-1 was raided at Jamshedpur on 05.08.2005. There are multiple objections to it on behalf of A-1. They are as hereunder; (i) Search was conducted in the absence of A-1 or his family members. A-1 was sick. (ii) The house where search was conducted at Jamshedpur was taken on rent by A-2. The house did not belong to A-1. (iii) PW248 Avtaar Singh has categorically stated that the house was taken on rent by A-2 and not by A-1. (iv) PW248 Avtar Singh is a neutral witness and he is reliable. (v) The inventory which was allegedly prepared on 5.8.2005 is not in accordance with law. (vi) The CBI circular requires that the value of the articles received has to be estimated based on the year of acquisition. In the instant case, year of acquisition of most of the articles have not been recorded. (vii) PW 246 Manoj Pangarkar has stated that the value of the articles seized was recorded on the basis of the statements given by independent witnesses but PW179 Vinod Kumar and PW180 K.K. Das, who were members of the search team did not support the statement of PW 246 Manoj Pangarkar with regard to the value of the articles seized at the time of sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent in the house at all. The search cannot be termed as in violation to rules in the absence of A-1 because the circumstances compelled A-1 to be shifted and willingly the other family members of A-1 did not join the search. 119. Ex.A-423 is the inventory prepared during search. PW 179 Vinod Kumar and PW 180 K.K. Das were also members of search team. They have also proved various documents and have spoken about the search. Both these witnesses have not stated about the value of the articles seized. PW246 Manoj Pangarkar was questioned about the value recorded in the inventory, particularly, item number no. 49 and 85. At item number 49, there are 73 sweaters and their value is assessed as ₹ 30,000/-. But, how could it be said to be unreasonable? Similarly at item no. 85, in the inventory 37 sarees, 45 blouse and 60 petticoats are recorded with a value of ₹ 55,000/-. How is it unreasonable? A suggestion was given to PW246 Manoj Pangarkar that a synthetic saree costs ₹ 150-450 also to which this witness expressed ignorance. The articles belong to A-1, who was a senior officer at the taxation department. A-1 could have produced receipts or other evidence to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also based on evidence. 124. There is another aspect of the matter. PW1 Harbhajan Singh Mann is the person who transported the household articles of A-1 from Dehradun to Jamshedpur and he took ₹ 30,000/- as charges for that. 125. The articles which was searched on 05.08.2005 by the CBI in the Jamshedpur house of A1 was transported by PW1 Harbhajan Singh Mann at the instance of A-1 from Dehradun. It also confirms that those articles belong to A-1. 126. The native village Bara of A-1 was also searched on the same day. PW208 Mithileshwar Prasad has stated about the inventory prepared after search made in the house of A-1 and A-2 situated in village Bara. He proved the inventory Ex. A-481. The court below rightly took into consideration the articles recorded in this inventory Ex. A-481. It has old double bed, table fans, tables, old crockery, old fridge, kitchen articles and various other household articles. The court below rightly held that the household articles of A-2, if any, were found by PW208 Mithileshwar Prasad, in the house search of A-1 and A-2 at village Bara, the inventory of which, is Ex. A-481. The Car 127. A car was also found in the search on 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aughter Nishu Kumari. He was staying in the rented house of A-2 where the search was conducted and Rs. One Lakh which the CBI received on that date, did belong to DW5 Harinam Singh. 132. On behalf of A-1, three witnesses have been examined for this purpose. DW5 Harinam Singh, DW7 Manoj Kumar Singh and DW8 Sachin Kumar Rathour. DW5 Harinam Singh has stated that on 05.08.2005, his daughter was admitted in the hospital. He was staying with A-2 in the rented house. On that date, in the morning, when he reached in the house, CBI stopped him and took Rs. One Lakh from the house, which he had collected for the purpose of the treatment of his daughter. 133. DW7 Manoj Kumar Singh is a photographer. According to him, on the date of search, he has taken photographs. He found DW5 Harinam Singh there, who told it to him that CBI had broken the door of his room. 134. DW8 Sachin Kumar Rathore at the relevant time was working as a pharmacist with a hospital. He has submitted a few documents with regard to a patient Nishu. The Court below did not believe, DW5 Harinam Singh and other witnesses who have supported his case for various reasons including the source of money and the credibili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing rate and that is what the CBI has done. It does not vitiate the valuation. The court below rightly concluded that the valuation done by the CBI cannot be doubted. 138. In view of the above, this Court is of the view that the court below has rightly reviewed the value of car and has also rightly rejected the other objections raised on behalf of A-1 with regard to statement B of his property. Statement C of A-1 139. This statement has four sub-heads. On behalf of A-1 objections have been raised on item at Sr. nos. 2 and 3. One is LIC survival benefits and the other is interest and dividends. 140. Under the LIC survival benefits, ₹ 20,000/- have been calculated by the CBI, which was received by A-1 in the year 2004. It is argued that in fact, it was a money back policy taken in the year 1994, therefore, A-1 could have also received ₹ 20,000/- in the year 1999. If A-1 had received this money, he could have produced any document, which he did not. Therefore, the objections raised on behalf of A-1 has rightly been rejected on this point by the court below. 141. At Sr. no. 3 in statement C under the head interest and dividend etc., the CBI had given be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved all the documents. On behalf of A-1, it is argued that on his transfer, A-1 could have got reimbursement for it. But, A-1 did not prove it. He did not show that he, in fact, had received ₹ 30,000/- as reimbursement. For the want of such documents, it cannot be said that this amount was received by A-1. 146. At Sr. no. 8, in the statement D , under the head of repair of car, ₹ 10,000/- expenses have been shown. It has been proved by PW10 Rakesh Oberoi. This is with regard to the car, which was found during search on 05.08.2005. The car was though registered in the name of PW247 Ramadhar Singh, but, this Court has already concluded that in fact, A-1 was owner to it. Therefore, expenses on repair has rightly been included under this subhead. 147. On behalf of A-1, it is also argued that the travel charges of ₹ 72,000/- cannot be shown as expenses because whatever journey A-1 undertook by way of air travel, that was with regard to official business and he must have been reimbursed for it. In fact, PW3 Naveen Singh Rawat and PW5 Bhagwan Singh Bisht have stated about the air travel charges of ₹ 72,000/- in the name of A-1. This is not disputed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the CBI with regard to her income and expenditure. 153. As stated, the trial has been initiated against a public servant and non-public servants. The non-public servants have been charged for abetting the commission of the offences by the public servant under the Act. 154. In the case of Jaydayal Poddar (supra), the Hon ble Supreme Court has categorically observed that in cases of benami transactions, generally direct evidence is not found. The circumstances are taken into consideration. One of the important circumstances is source of the purchase money. In paragraph 7 of the judgment in the case of Jaydayal Poddar (supra), the Hon ble Supreme Court, in fact, used the expression whence the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another . 155. The source of income of the ostensible owner, it also required to be seen. In the case of Jaydayal Poddar (supra), K. Ponnuswamy(supra), this proposition has already been upheld by the Hon ble Supreme Court. In the case of J. Jayalalitha (supra) also, the proposition as laid down in the case of K. Ponnuswamy(supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were valued at the market rate. iv. Valuation by CPWD is not binding on the Income Tax Officer as per section 142(7) of the Income Tax Act.A-2 got constructed her house through contractor and a family friend Ranvir Singh whose son PW104 Pramod Kumar has statedabout it. The house was valued by PW153 A.S. Gupta. He has correctly valued the house. This valuation should have been accepted. v. A-2 got her house valued by registered valuer. Shri A.S. Gupta, who valued the house at ₹ 39.5 Lakhs. Shri A.S. Gupta, admits that valuation done on 30.03.2003 and 30.12.2003 after proper measurement of building was correct. vi. Valuation of any house is always estimation. So, it can never be perfect. Reference has been made to the principle of law as laid down in the case of Bholanath Majumdar v. ITO Ors., (1996) 221 ITR 608 Gauhati. In the case of Bholanath Majumdar (supra), the Hon ble Supreme Court held that A valuation report is only an opinion of a valuer . 160. On behalf of A-2, following objections have been raised on the valuation of the Rajpur Road house; (i) Rough notes were not attached with the report by PW66 Rajendra Singh. It makes the report incomp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation may be told by the person who constructed the house. The person who constructed the house can produce each and every bill and receipts by which the materials were purchased in constructing the house. Who constructed the house, is another issue, which is examined at other place in this judgement. At this moment, this Court is concerned about cost of the Rajpur Road house. 163. PW66 is Rajendra Singh. He with the help of PW 98 Avneesh Kumar Deshwal , PW149 A.K. Chaddha, PW150 S.P. Garg, and PW187 D.D. Gupta, prepared the valuation report which is Ex. A-116. In fact, PW98 Avneesh Kumar Deshwal did horticulture valuation. PW149 A.K. Chaddha and PW150 S.P. Garg did electric valuation. According to PW66 Rajendra Singh, he construed a team of experts for valuation of the Rajpur Road house. The team with the help of CBI Officers, inspected the house, took measurements and based on rates of CPWD valued the house and accordingly the report was prepared. He proved the report Ex.A-116. According to this report, the valuation of the Rajpur Road house is hereunder:- ABSTRACT OF COST Assessment of House No. 169/21, Rajpur Road, Dehradun A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the appellants that rough notes have not been preserved. Reference has been made to the statement of PW66 Rajendra Singh at paragraph 8, where, he has stated that he did not check rough notes while examining the actual report. In paragraph 9, he denied the suggestion that they destroyed rough notes. In fact, some of the parts of Ex.A-116 appears to be rough notes. They are D153/33 to D153/39, which are bare measurements alone. Again, D153/45 is also a sketch. They are rough notes. This report Ex.A-116 is based on opinion and there is no reason to discard this report. 167. A report prepared by PW153 A.S. Gupta has been put into service on behalf of the appellants. It requires examination. PW153 A.S. Gupta has stated that he met A-1 through Alok Jain. According to him, Alok Jain requested him that he should prepare valuation report of a house, which was being constructed by A-1 and he prepared a report Ex.A-347. According to this report, the total valuation of the property is ₹ 21,30,000/- This witness PW153 A.S. Gupta prepared another report which is Ex.A-361. It is dated 06.02.2006 and according to it, the extra work in the building was done of ₹ 8,55,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 153 A.S. Gupta at the behest of A-1. Another report was prepared by PW153 in the year 2006, which is Ex.A-361. It also does not have any basis. It was also prepared by PW153 A.S. Gupta under the instruction of A-1. This report is also not reliable at all. 172. It is argued on behalf of the appellants that, in fact, A-2 had got the house constructed through one of the family friends. Reference has been made to the statement of PW104 Pramod Kumar. This witness has stated that his father had constructed the house of A-2. His father was 73 years of age in the year 2003. It is also argued that there may be variation of the cost, if the house is constructed by some person on his own. But, then, it was to be proved by the person who constructed the house. The statement of PW104 Pramod Kumar is not reliable. There is no document which would show that father of PW104 Pramod Kumar did undertake the construction of Rajpur Road house at the behest of A-2. There is no record, which would reveal that the material was brought at the cheaper rate, from the place where it could found in abundance. The court below rightly discarded the statement of PW104 Pramod Kumar. 173. Therefore, this cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 ₹ 59,10,300/-. The court below did not accept the income of A-2 from agricultural land at ₹ 59,10,300/- as shown by the CBI in its chargesheet. The court below found that, in fact, A-2 had annual income of ₹ 45,000/- from agriculture. For the 8 years of check period this total value was calculated at ₹ 3,60,000/- and ₹ 45,000/- as the rental income of Rajpur Road house has been added to it. Accordingly, the court below found that the income of A-2 from agricultural land and rental income during the check period was ₹ 4,05,000/-. The court below also did not take into consideration the HUF income of A-2 as claimed by her and considered that, in fact, the HUF had already been partitioned. 178. On behalf of A-1, it is argued that the income of A-2 is as follows: (A) Agricultural income for the check period ₹ 75,10,300/- (₹ 59,10,300/- upto March, 2004 and ₹ 12,0,000/- for financial year 2004-05 and ₹ 4,00,000/- from April, 2005 to August, 2005). (B) The rental income as per income tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agricultural land and agricultural income. 182. Learned counsel for A-2 also argued with regard to HUF of A-2. He would also argue that the court below has wrongly taken into consideration that HUF property had been partitioned because, it is argued that, this fact has not been brought to the notice of A-2 under Section 313 of the Code. A fact which has not been brought to the notice of the accused under Section 313 of the Code, according to the learned counsel for A-2, cannot be taken into consideration. It cannot be read against such accused. Learned counsel for A-2 has also raised the following points:- i. HUF issue was not raised by CBI. HUF was not a point for determination formulated under Section 354 of the Code. ii. Under Section 171 of the Income Tax Act, HUF continues to remain HUF until dissolved and such satisfaction was recorded by the Income Tax Officer. iii. The partition of HUF property cannot be taken into consideration because such partition deed required registration under the Registration Act. Such document is also hit by the provisions of the Registration Act. 183. First and foremost, the income of A-2 from agriculture has to be examined. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificates with regard to agricultural income of A-2. He has proved all those documents Ex. A-192 to A-205. Ex. A-200 is a certificate with regard to income from fisheries. Ex. A-202 is details of the income from agriculture from 1996-97 to 2003. There are other certificates for different years, which are part of this exhibit. 189. According to PW 82 Ramji Singh, he along with PW 110 Manmohan Prasad prepared the report Ex. A-199. He admits that he did not see any poultry farm running. This witness was declared hostile by the prosecution and he has been cross-examined. In paragraph 12 of his statement, PW 82 Ramji Singh admits that he prepared the reports Ex. A-199 based on a report of Agricultural Officer. They did not see any crop on the field. They did not collect information with regard to income from any person, who may have purchased the crops from A-1 and A-2. They just prepared the report. According to PW 82 Ramji Singh, he inquired from local people with regard to the crops and thereafter they made their report. How can such report be relied on? 190. PW 110 Manmohan Prasad was also a member of the team, who prepared the reports as proved by PW 82 Ramji Singh. In his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 12,50,750/-. This witness has stated that based on his estimation, he had given this certificate. This report is dated 23.03.2005. It may be noted that the report subsequently given by PW 154 Ashok Kumar Pal, which is Ex. A-348 is dated 05.04.2005. Why did they prepare these reports? 197. PW 241 Altaf Ansari has stated that certain documents were given by him to CBI by seizure memo Ex. A-543. It includes a letter Ex. A-350. It is a letter given by A-2 to the Administrative officer for agricultural income certificate. PW 241 Altaf Ansari was the Assistant Regional Officer, Nabinagar Office at the relevant time. It means that on an application of A2, PW 193 Dharmraj Singh and PW 154 Ashok Kumar gave reports Ex. A-349 and Ex. A-348, respectively, without any basis. 198. The reports Ex. A-348 and A-349 are without any basis. Two Government Officers have without any reason given reports that the agricultural income of A-2 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent views taken then. The Hon ble Supreme Court observed The said two decisions did not recognise the widow as a karta of the family, but treated her as the guardian of the minors for the purpose of income-tax assessment. The said decisions, therefore, do not touch the question now raised. The Madras and Orissa High Courts held that coparcenership is a necessary qualification for the managership of a joint Hindu family and as a widow is not admittedly a coparcener, she has no legal qualification to become the manager of a joint Hindu family . The Hon ble Supreme Court affirmed the judgment of Hon ble Madras High Court given in the case of Radha Ammal v. Commissioner of Income Tax, Madras, (1950) 18 ITR 225, in which the Hon ble Madras High Court had held as under:- The right to become a manager depends upon the fundamental fact that the person on whom the right devolved was a coparcener of the joint family ..Further, the right is confined to the male members of the family as the female members were not treated as coparceners though they may be members of joint family. the managership of a joint Hindu family is a creature of law and in certain circumstances, coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 210. The Hon ble Court further observed Coparcener heirs get right by birth. Another method to be a coparcener is by way of adoption. As earlier, a woman could not be a coparcener, but she could still be a joint family member . 211. Section 6 of the HS Act, 1956 was substituted in the year 2005. Post amendment, this Section is as hereunder:- 6. De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt : Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect- (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation .-For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ₹ 5,00,000/- (individual + HUF + Pension + Agriculture). As per forensic report, this affidavit was filled in by A-1. 216. There is another document, Ex. A-118, an application of A-2 given for obtaining Reliance Petrol Pump. It has been proved by PW 67 Rajagopalan N.H. Ex. A-118 is bunch of papers from paper No. 154 A/1 to 154 A/30. PW 67 Rajagopalan N.H. has stated about these documents. Signature and writing on this application, Ex. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code, therefore, it could not be read into evidence. In support of their contention, learned Senior Counsel placed reliance on the principle of law as laid down in the case of Sujit Biswas (supra). 224. It is true that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 in her examination under Section 313 of the Code (in answer to Question 166) has admitted Ex. A-193. According to her, the document reveals that her annual income from agriculture was in lakhs. According to her, she used to keep entire agricultural income with her as Karta of HUF, which she had shown in her ITR. Document Ex. A-193 speaks of partition amongst A-1 and A-2 and other family members. Tenant Ledger Ex. A-194 and Mutation Register Ex. A-195 are part of it. In Question Nos. 221 and 222, A-2 has been asked to explain about the statement given by PW 110 Manmohan Prasad about Ex. A-193. In Ex. A-193, the share of A-2 is shown as 8.34 acres. In Question No. 221, A-2 was asked that according to PW 110 Manmohan Prasad, in her name 8.34 acre land is recorded. A-2 simply repeated the story of HUF (As stated, it has already been held that A-2 had no been part of HUF). In Question No. 222, she was asked about the details of income and expenditure from the year 1996-97 to 2004-05. In reply to it, she says that it is a matter of record. She tried to explain it further. Therefore, it cannot be said that the factum of partition was not put to A-2 in her examination under Section 313 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of partition, may lead to that conclusion in conjunction with various other facts. Such as separate occupation of portions, division of the income of the joint property, definement of shares in the joint property in the revenue or land registration records, mutual transactions, as observed in Bhagwani Kunwar v. Mohan Singh [Bhagwani Kunwar v. Mohan Singh, 1925 SCC OnLine PC 27 : AIR 1925 PC 132] and Digambar Adhar Patil v. Devram Girdhar Patil [Digambar Adhar Patil v. Devram Girdhar Patil, 1995 Supp (2) SCC 428 : AIR 1995 SC 1728]. (emphasis supplied) 234. It has been admitted on behalf of A-2 that agricultural land belongs to ten persons. A-2 was not part of HUF. The court below held that she had 1/10th share in it. Though, it is observed on the basis of HUF partition. Since A-2 was not part of HUF, there is no question of her getting any share in HUF out from partition, except her share after demise of husband as per proviso to Section6 of the HS Act, 1956 (unamended). But, based on share of A-2, the conclusion arrived at by the court below cannot be doubted. This Court is of the view that the court below rightly observed that agricultural income of A-2 was ₹ 45, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vitiate the conviction unless it is shown that it has caused prejudice to the accused and is resulted in failure of justice. Reference has been made to the judgment in the case of Kamil v. State of UP, AIR 2019 SC 45. ii. All the documents were given at the initial stage to A-2 under Section 207 of the Code. A plain reading of prosecution case along with accompanying documents clearly conveyed that the prosecution has not accepted and seriously disputed that there was any income of A-2 from agriculture. A 2 fully joined the issue and participated and never raised any objection and cross examined various witnesses. The documents brought on record show that the alleged agricultural income was HUF and not the personal income of the accused. iii. A-2 herself has taken a specific stand that she has agriculture income of HUF and she waskarta of HUF. iv. A-2 furnished documents during investigation with regard to her income from HUF. v. A-2 herself admitted under Section 313 of the Code that she is Karta of HUF. Her statement is sufficient to show that A-2 had complete knowledge that she has to satisfy and prove that the alleged agricultural income of HUF was her ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the death of aforesaid A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny prejudice has been caused to A-2 and it resulted into the failure of justice? 247. There are three certificates with regard to agricultural income of A-2. They are Ex. A-199, proved by PW 82 Ramji Singh, Ex. A-348 and Ex. A-349 issued by PW 154 Ashok Kumar Pal and PW 193 Dharmraj Singh, respectively. All these certificate are most unreliable documents. It has already been held by this Court. 248. In the instant case, in fact, CBI produced all the materials collected by it during investigation. For example, with regard to the valuation of Rajpur Road house, two reports, one prepared by CBI valuer and another given by defence, have been produced in evidence by the CBI. Similarly, with regard to valuation of Uruvela International Hotel also, two reports, one procured by CBI and another by the appellants, have been adduced in evidence. Although, the prosecution assailed the valuation reports, which were given by the defence, ultimately, the CBI has left it to the Court to adjudicate as to which of the reports is to be accepted. 249. PW 82 Ramji Singh, PW 110 Manmohan Prasad, PW 152 Pradhumna Pandey, PW 215 Uday Shankar Singh and PW 240 Chandrashekhar have stated about Ex. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y held that both these reports are without any basis and unreliable. 256. PW 154 Ashok Kumar Pal and PW 193 Dharmraj Singh both have been declared hostile by the prosecution and they have been cross-examined. In paragraphs 8 and 9 of the statement of PW 154 Ashok Kumar Pal, he was suggested that without any basis, he issued the certificate and he is giving false evidence. He denied these suggestions. This witness was cross-examined by the appellants. 257. PW 193 Dharmraj Singh was given a suggestion in paragraph 10 of his statement that he gave report to help A-2. He denied this suggestion. This witness was also cross-examined by the appellants. 258. In her examination under Section 313 of the Code, A-2 was asked about her agricultural income. She has tried to explain about it. 259. The examination of above witnesses and their cross-examination by the prosecution, particularly the suggestions, which were given to them by the prosecution, clearly indicated during the course of the trial that the prosecution is not relying on the income certificates, Ex. A-199, Ex. A-348 and Ex. A349. Therefore, it is abundantly clear that during the course of trial, A-2 was made aware th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sale proceeds of land 4,000/- 4,000/- 4,000/- 7. Loan from S.S. Marya 2,75,000/- 2,50,000/- 2,50,000/- Total 68,26,939/- 13,00,882/- 13,00,82/- Income from Other Sources 263. On behalf of A-1 and A-2 with regard to income of A-2, certain objections have been raised, which are discussed as hereunder: 264. Rental income from Patna is claimed at ₹ 4,06,910/- by A-2, but there is no evidence to it. It is argued that A-2 has shown it in the income tax return but the income tax return is no evidence to prove a fact in a criminal trial. A-2 would have produced documents as to who paid this amount? How was it paid? And, where was it deposited? It is not done so. 265. Proceeds from sale of Palio car - ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted by the court below. There has been no argument on this point. At Sr. No. 6 of it, the electricity charges for Rajpur Road house has been shown at ₹ 18,075/- in the chargesheet, but the court below based on calculation took it at ₹ 12,792/-. It has not also been objected to. In fact, on behalf of A-2, arguments have been made that A-2 did not incur any expenditure with regard to her treatment in Fortis Hospital. At Sr. No. 4 of statement D , ₹ 2,42,053/- has been shown as expenses of A-2 on her knee treatment at Fortis Hospital. It is argued that, in fact, A-2 had gone for treatment with her son Arunabh Suman and address of A-2 has been recorded in the hospital record. The amount was not paid by her. 271. A-2 has claimed that she is an independent lady. She is receiving money from pension. The Court cannot presume that any other person would have paid for her treatment. The court below widely discussed this point and held that it is A-2 herself, who had paid this amount. The total expenditure was taken by the court below at ₹ 8,02,999/- against ₹ 10,07,877/- as claimed by the prosecution. This Court is of the view that the court below has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following points have also been raised on behalf of A-1:- (i) PW 202 Dharmendra Gupta did not support the prosecution case. (ii) PW 86 Anil Jindal did not name A-1. The source of income of A-4 cannot be seen or examined. (iii) The power of attorney, which A-4 allegedly gave to Arunabh Suman is not a power of attorney, as it is not registered. (iv) The flat was let out to Arunabh Suman, through property dealer PW 164 Sanjay Kumar Jain. The power of attorney was given on the suggestion of Sanjay Kumar Jain so that Arunabh Suman can do anything for maintenance and repair of the flat. (v) The observation that A-1 misplaced the ITR of A-4 is without any basis. (vi) A-4 had no financial connection with A1. So, the flat of A-4 cannot be treated as benami of A-1. (vii) A-4 always remained in control and possession of the flat. 276. Learned Special Counsel for the CBI would submit that A-1 used the name of A-4 for purchasing the flat. A-1 provided money to CAs for arranging the draft. There is no proof that ₹ 10 lakh was arranged by A-4 for procuring the draft. The chain of CA s involved in preparing the draft originates in Dehradun. A-1 had clos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50,000/- in cash and ₹ 9.75 lakh by way of bank draft. A-4 has his account in Oriental Bank of Commerce, Dehradun. 283. PW 20 Vijay Keerti and PW 43 Vivek Pokhariyal have stated about the bank details of A-4. The account details have been given by the bank officials, which is Ex. A-42. It reveals that on 24.08.2002, ₹ 9,75,877/- were deposited in the account of A-4 by clearance and the draft for ₹ 9.75 lakh was prepared on 27.08.2002. It may be noted here only that according to the communication given by PW 175 Dalip Kumar to the Secretary of the society PW 174 Deepak Mehta (Ex. A-409), on 21.08.2002 the vendor had received the full and final payment. How was it so, when the draft itself was prepared on 27.08.2002? The Court leaves it at it. 284. In his examination under Section 313 of the Code, in answer to question no. 10, A-4 has admitted that he had prepared the bank draft for ₹ 9.75 lakh on 27.08.2002. In answer to question no. 7, A-4 has stated that the draft for ₹ 9,75,877/- was received by his father by sale of some shares. 285. It is proved by the prosecution that in the account maintained by A-4, with the Oriental Bank of Commerce, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anil Jindal. According to him, PW 123 Mahesh Garg used to prepare draft on cash. This witness was approached by PW 86 Anil Jindal to prepare a draft in the name of A-4, which he prepared through PW 123 Mahesh Garg. This witness has also stated that he received ₹ 10,000,00/- in cash through PW 86 Anil Jindal. He also proved the documents. 293. PW 123 Mahesh Garg is the person, who prepared the draft. He has supported the statement of PW 86 Anil Jindal and PW 87 Akhil Mahajan. He took the money from PW 87 Akhil Mahajan and prepared a draft of ₹ 9,75,877/- in the name of A-4. This witness has proved the voucher Ex. A-301, which he filled up to prepare the draft and also proved his bank statement. The statements of PW 86 Anil Jindal, PW 87 Akhil Mahajan and PW 123 Mahesh Garg proved the prosecution case. It is PW 202 Dharmendra Kumar Gupta, who gave money for preparing the draft in the name of A-4.Why Dharmendra Kumar Gupta did so, he has revealed that he was contacted by PW 102 Rajeev Mittal, who is a Chartered Accountant in Dehradun. He knows A-1. 294. The Court has to make inferences now. The Court has not based its opinion on the basis of any conjecture or surmis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handed over to the IO by PW 69 Sunil Goyal, but certain statements are also contained in this annexure A-120. 298. In support of his submission, learned Senior Counsel for A-1 has referred to the principle of law as laid down in the cases of Tori Singh and another v. State of Uttar Pradesh, AIR 1962 SC 399; Jagdish Narain and another v. State of U.P. (1996) 8 SCC 199; Public Interest Foundation and others v. Union of India and another, (2019) 3 SCC 224 and Girish Kumar Suneja v. Central Bureau of Investigation, (2017) 14 SCC 809. 299. Before proceeding further, it would be apt to reproduce Section 162 of the Code. It is as hereunder:- 162. Statements to police not to be signed: Use of statements in evidence.- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Sub-Inspector and the place where the deceased was hit and also the places where the witnesses were at the time of the incident were obviously marked by him on the map on the basis of the statements made to him by the witnesses. In the circumstances these marks on the map based on the statements made to the Sub-Inspector are inadmissible under Section 162 of the Code of Criminal Procedure and cannot be used to found any argument as to the improbability of the deceased being hit on that part of the body where he was actually injured, if he was standing at the spot marked on the sketchmap. 302. In the case of Jagdish Narain (supra), the principle of law as laid down in the case of Tori Singh (supra) has been followed. 303. In the case of Girish Kumar Suneja (supra), in fact, the Hon ble Supreme Court discussed the provisions of appeal, revision, Article 226 and Article 227 of the Constitution of India. In the case of Public Interest Foundation (supra), the Hon ble Supreme Court dealt with the provisions of election. 304. How a statement recorded during investigation can be used during trial, it has been discussed quite in detail by the Hon ble Supreme Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW 69 Sunil Goyal has stated that during investigation, he made a communication to the IO along with which he gave certain documents to the IO. This communication is Ex. A-120. If during investigation, an IO takes into custody certain documents from a witness and prepares a seizure memo, to that extent the seizure memo may be proved and read into evidence. But, if the seizure memo also records some statement of a witness and signed by such witness, such statement cannot be read into evidence. It is inadmissible. It cannot be looked into. It is against the intent of the legislature. In Ex. A-120 there are certain statements given by PW 69 Sunil Goyal to the IO. It is particularly recoded in the last page of this document. (This document runs in three pages). Therefore, the statement of PW 69 Sunil Goyal as contained in Ex. A-120 may not be read into evidence for any purpose whatsoever. 308. It may be noted that PW 69 Sunil Goyal has not supported the prosecution case in full. He was cross-examined by the CBI. As stated hereinbefore, along with his communication Ex. A-120, PW 69 Sunil Goyal has also given certain documents to the IO. These documents have also been proved by PW 69 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gambar Jagdane (supra), the Hon ble Bombay High Court discussed the evidentiary value of a statement of a witness recorded under Section 164 of the Code, who during trial did not support the prosecution case. The Hon ble Court held as hereunder:- 12. . In our opinion once Narayan has not supported the prosecution, the statement given under 164, even if proved, can never be accepted as substantive evidence. In that behalf reference to the decision of the Privy Council reported in AIR 1946 PC 38 : (1946 (47) Cri LJ 336) is extremely fruitful. The Committee of the Privy Council speaking through Sir John Beaumont, J. in the aforesaid decision on page 41 (of AIR) : (atp. 338 of Cri LJ) of the report has observed as under: The learned Judges discussed in great detail the statements made by Haliman and Mahabir under S. 164 and gave reasons for accepting the fagts, or most of the facts, deposed to in those statements, in preference to the evidence given by the witnesses in Court, which in no way helped the prosecution. This was an improper use of such statements. A statement under S. 164 can be used to cross-examine the person who made it, and the result may be to show th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were sent for forensic examination. PW 165 P.Venugopal Rao has proved that in the vouchers there are signatures of A-4. It is A-4, who was taking material for construction of the house of A-1 from the shop of PW 69 Sunil Goyal. A-4 has very close relations with A-1. A-4 was closely associated with aiding A-1. 315. There is another aspect of the matter. A-4 did file income tax return for the year 2003-04, but they were not traceable in the income tax department. PW 70 Kambar Murtaza and PW 78 Shashi Prabha have categorically stated that it is A-1 who gave the income tax return of A-4 to PW 17 Kambar Murtaza and after obtaining receipt of it, A-1 took the returns back and did not submit further to the department. 316. PW 132 Santosh Deep has stated that A-4 used to visit in the income tax department. The prosecution has proved beyond reasonable doubt that A-4 was taking building materials from the shop of PW 69 Sunil Goyal for the house that was being constructed by A-1 at Rajpur Road, Dehradun. The vouchers bear the signature of A-4. The income tax return of 2003-04 of A-4 was given to PW 70 Kambar Murtaza by A-1 and after obtaining receipt, the ITR was taken back by A-1. A-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was never been in the possession of A-4. A search was conducted on 05.08.2005 of the flat. PW 209, S.K. Sharma and PW 252 S.S. Kishore were part of search team. They have proved the inventory as well as the power of attorney also (Ex. A485 and Ex. 486). At the time of search on 05.08.2005, Arunabh Suman, the younger brother of A-1 was found occupying the flat. It is A-1 s possession, not A4 s possession. When A-4 was asked about the possession of the flat by Arunabh Suman, in answer to question no. 18, in examination under Section 313 of the Code, A-4 would submit that he had given the flat on rent through a broker and he did not know as to who was residing in the flat. But, Arunabh Suman was staying there when search was made on 5.8.2005. In answer to Question No. 20, A-4 has stated that he did not execute any power of attorney in favour of Arunabh Suman. 321. During the course of arguments, on behalf of A-4, it is argued that Ex. A-486 is not a power of attorney as such because it has no date or witness (es). It is argued that, in fact, in order to run day to day business of the society, A-4 had authorized Arunabh Suman and therefore the document was written. This is a false e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty of A-1, which A-1 acquired in the name of A-2. Arguments 324. On behalf of A-1, it is argued that Rajpur Road house belongs to A-2. The following points have been raised by the learned Senior Counsel for A-1 on this aspect:- i. There is no financial link between A-1 and A-2. ii. Dehradun Municipality records A-2 as the owner of Rajpur Road house. iii. A-2 has shown the house in her ITR along with the valuation report. iv. The IO was aware of the valuation report prepared by PW 153 A.S. Gupta, but he did not consider it. v. A-2 had sent representation to the IO regarding her assets during investigation. vi. A-2 had told it to the IO that she got the house constructed with the help of a family friend Ranvir Singh and the cost was shown in her balance sheet, attached with the ITR. vii. PW 4 Pramod S/o Ranvir Singh has stated that his father helped A-2 in building the Rajpur Road house. viii. Mutation of house is in the name of A-2. 325. Learned Senior Counsel for A-1 would challenge the finding rendered by the court below, on this aspect, as below:- i . The observation that A-1 played role in purchase of the plot and fix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 Ashok Kashyap. In his examination PW 19 Ashok Kashyap has admitted that his firm had issued the property certificate to A-2 (It is part of Ex. A-118). 332. PW 6 I.K. Batta and PW 58 Awdhesh Kumar have levelled various allegations against A-1. PW 6 I.K. Batta is also a Chartered Accountant. According to him, some illegal demand was made by A1 from him, which he declined. Thereafter, his client Ramesh Batta, who is PW 88, was called by A-1. Thereafter PW 88 Ramesh Batta changed his CA and appointed PW 19, Ashok Kashyap, CA. PW 6 I.K. Batta has categorically stated thatafter PW 88 Ramesh Batta met A-1, he revealed it to him that A-1 wanted that PW 88 Ramesh Batta should appoint Ashok Kashyap as his CA, which he did. PW 88 Ramesh Batta did not support the prosecution case fully, but in his cross-examination, he has admitted that I.K. Batta was his CA, which he changed and appointed Ashok Kashyap Company as CA. 333. These all circumstances connect Ashok Kashyap with the purchase of land for Rajpur Road house. It connects A-1 with Ashok Kashyap and thereafter PW 58 Awdhesh Kumar and PW 207 Vivek Kumar, who finally executed the sale deed. It connects the whole chain that PW 19 As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his witness. It includes bills, which were prepared in the name of A-1. There are vouchers also, which were taken into custody by the CBI. The Court had already concluded that A-4 took materials from PW 69 Sunil Goyal for construction of the house by A-1. 340. PW 69 Sunil Goyal has stated that A-1 had told it to him that some of his relatives would come, and he should provide the articles to him at reasonable rate. This Court in quite detail discussed the evidence of PW 69 Sunil Goyal, while examining the nature of Flat No. B-122, Panchvati Apartment, Sector 62, Noida, which was purchased in the name of A-4. Admissibility of Ex. A-120 has also been discussed by this Court. In fact, the portion of Ex. A-120 cannot be read into evidence, which is in the nature of the statement of PW 69 Sunil Goyal. But, PW 69 Sunil Goyal has proved vouchers/bills in the name of A-1. They are Ex. A 122 to Ex. 128. PW 69 Sunil Goyal has stated that he gave materials under the assumption that it is taken by PW 128 Mr. Marya and A-4 for A-1. In his statement before the court, this witness has stated that A-4 was introduced to him by PW 128 S.S. Marya. The Bills/vouchers are in the name of A-1. 341. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st A-1 that he did not pay for the material, which he procured for construction of the Rajpur Road house. This aspect will be discussed at a later stage of this judgment, while appreciating the evidence for the offence under Section 11 of the Act. 348. The court below has, in para 829 of the impugned judgment, observed that PW 138 Ashok Kumar Singh had been won over by the accused. It may be noted that PW 99 Rakesh Sharma has proved certain documents and stated that the electric goods were taken by A.K. Singh. But, PW 138 Ashok Kumar Singh did not corroborate the statement of PW 99 Rakesh Sharma. He also denied his signature on the vouchers proved by PW 99 Rakesh Sharma. Under these circumstances, the statement of PW 99 Rakesh Sharma transpires confidence and is reliable to the extent that A-1 had taken electric goods from his shop. The prosecution could have got the signature of PW 138 Ashok Kumar Singh on Ex. A-239 to A-249, examined by any forensic expert, but it has not been done. PW 138 Ashok Kumar Singh has not corroborated the statement of PW 99 Rakesh Sharma. It may be for varied reasons. 349. If A-2 had constructed the house, she could have come forward to reveal as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A-2 was staying with A-1. As held by this Court, A-2 did not have the income as alleged by her from HUF. A-1 was senior officer in taxation department in Dehradun. There is no direct financial link, but there are multiple circumstances, as stated hereinabove, which connect A-2 with A-1. They do not connect A-2 with any other person in the universe, in so far as the construction of Rajpur Road house is concerned. Therefore, this Court is of the view thatRajpur Road house was constructed by A-1 from his income, which was not known and in order to conceal his design, it was purchased by A-1 in the name of A-2. The court below has rightly drawn its conclusion on this point. The finding does not warrant any interference. HOTEL URUVELA INTERNATIONAL, BODHGAYA 354. According to the prosecution, this hotel is situated in district Gaya. The land was purchased in the name of A-3. He happens to be the brother-in-law of A-1. It is the prosecution case that Hotel was constructed on this land by A-1 and it was done in the name of A-3. 355. According to the chargesheet, the valuation of the hotel is ₹ 1,72,50,308/-. There are two valuations reports of the hotel, one procured by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be made applicable. viii. PW255 Rajesh Tomar is not an expert. It was his first valuation report. He even did not know the thickness of the wall or depth of the foundation. He did not submit rough notes of the measurements. ix. Opinion of an expert can be relied on if it has its basis. The CBI valuer has not submitted the rough notes. The valuation done by PW94 R.N.P.J. Paul as well as PW170 Dinesh Kumar Nigam have also been challenged on the same grounds. x. PW 234 Sitaram Sahu, PW 242 Mehfooz Alam, PW 245 Gopal Prasad and many other witnesses have not supported the prosecution case. They have stated that the hotel was constructed by A-3. The hotel is mutated in the name of A-3. Electricity and water connections are in the name of A-3. Since, A-3 was ill with cardiac problem, PW 190 Sushil Kumar and PW 105 Umakant Singh helped him and opened the account for the hotel, but, it was operated by A-3. xi. The CBI valuer has not submitted documents to reveal the cost, which they assessed. The cash memo and other details have not been filed. The court below wrongly shifted the onus on defence to prove the cost. It is wrong appreciation of the fact. xii. PW 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable opinion. The evidentiary value of the opinion of an expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Thus the idea that is proposed in its crux means that the importance of an opinion is decided on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be crosschecked. Therefore, the emphasis has been on the data on the basis of which opinion is formed. The same is clear from the following inference: Mere assertion without mentioning the data or basis is not evidence, even if it comes from an expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value. 360. In the case of Jai Lal (supra), the Hon ble Supreme Court observed as hereunder:- 18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the observations made by Mr. Justice P.N. Bhagwati, as he men was, in case of Suleman Usman Memon v. State of Gujarat, reported in 1961 GLR 402, wherein at page No. 410, it has been observed as under: It is not enough for the Chemical Examiner merely to state his opinion as to what was the concentration of alcohol in the sample of the blood analysed by him. The report of the Chemical Examiner must show the tests or experiments performed by him, the factual data revealed by such tests or experiments and the reasons leading to the formation of the opinion from such factual data. This legal proposition emerges clearly and unmistakably if one bears in mind the true nature of the evidence furnished by the report The report of the Chemical Examiner containing his opinion must, therefore, disclose the factual data on which the opinion is based and the reasons in support of the opinion. Opinion is no evidence unless the reasons in support of the opinion are given, for it is then only that the Court can scrutinize the reasons and decide for itself as to what weight should be attached to opinion. 362. On behalf of A-1, learned Senior Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of A-2 and the wife of A-3 (She is Suniti Suman, the daughter of A-2), huge amount was deposited in cash by Ajay Kumar Singh. This amount is more than ₹ 67 Lakhs. According to the CBI, Ajay Kumar Singh deposited cash in the account of A-2 and Suniti Suman, the wife of A-3 after having received it from A1. According to the prosecution, it was money earned by A-1 by the illegal means. PW190 Sushil Kumar Singh 367. This person is a childhood acquaintance of A-1. His father was also working in the Magadh University where father of A-1 was also working at the relevant time. They were residing in the same campus. The hotel has been registered in the name of this person. He has been shown as the proprietor/MD of the hotel. In the hotel, there is a Sneh Point restaurant. It has also been registered in the name of this person. It is the case of the prosecution that A-1 was operating his business through PW105 Umakant Singh and PW190 Sushil Kumar. They both were, according to the prosecution, the confidential men of A-1. Establishment of the hotel 368. The land on which the hotel has been constructed was purchased in the name of A-3 from PW160 Jai Singh. He has stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hotel. PW77 Satyendra Nath Upadhyay has also stated that the account of the hotel was opened by PW 105 Umakant Singh. This witness had identified PW 105 Umakant Singh at the time of opening of the account. This witness was Assistant Manager of the Bank at the relevant time. 375. PW229 Nand Kishore Sharma has also stated about the bank account of the hotel opened in the name of Umakant Singh. 376. PW190 Sushil Kumar Singh has also admitted that he opened an account of Sneh Point Restaurant of the hotel in his own name showing himself as the proprietor. According to him, since A-3 was unwell, he was asked to open the account. 377. PW186 Amarnath Prasad was working in the office of the Labour Department at the relevant time. According to him, the hotel was registered in the name of PW190 Sushil Kumar. 378. PW191 VaidyaNath Prasad deposed that A3 did not inform the university about construction of the hotel. 379. PW184 Mohammad Akram Alam is the witness of the search of the hotel. He has stated about it and proved certain documents. 380. There are two more important witnesses, they are PW93 Anand Kumar Singh and PW115 Shadan Ayubi. Both are Income Tax Officers. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el 384. On behalf of CBI, PW94 R.N.P.J. Paul, PW 170 Dinesh Kumar Nigam and PW255 Rajesh Tomar have proved their valuation reports, which relate to electric valuation, horticulture valuation and civil plus furniture assessment respectively. On behalf of A-3, PW95 Sanjay Kumar s report has been relied on. 385. PW95 Sanjay Kumar has stated that he prepared various valuation reports of the hotel. He proved them as Ex. A-231. The oldest report is dated 24.6.1999. The details of reports are as hereunder: i. Report dated 22.06.2003. It is for the period till 31.03.2003; date of inspection is 16.06.2003. According to this report, inspection of property was done on 16.06.2003. If it is so, how could this valuation report be for the period ending on 31.03.2003. Does it mean that after 31.03.2003 till the date of inspection i.e. 16.06.2003, no construction was raised? ii. Abstract of estimate dated 20.06.2003. iii. Report dated 02.07.2002. It is also upto 31.03.2002. According to this report, date of inspection is 25.06.2002. Again the same question, as to how on 25.06.2002, it could be recorded that this report is for the period ending on 31.03.2002? Had no work bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of A-1 that pursuant to an order passed by the Hon ble Delhi High Court, A-1 collected this report from A-3 and handed over it to the IO. 389. Learned Senior Counsel has made reference to a communication dated 25.04.2008 of A1, made to CBI which is D54/1 on record. In paragraph 4, it records thatA-1 collected this report from A-3. On 05.08.2005 search were made at various places including the house of A-1 and A-3. These reports were not found then. The record definitely reveals that pursuant to directions of High Court Delhi, A-1 handed over this valuation report Ex.A-231, prepared by PW95 Sanjay Kumar, to the IO. But, where was this report kept till it was taken by A-1 from A-3?PW95 Sanjay Kumar has stated that he had no computer, therefore, he had no record of the reports prepared by him. 390. There is no communication made by A-3 to PW95 Sanjay Kumar with regard to the preparation of the reports. How and under what circumstances, at regular intervals, PW95 Sanjay Kumar did prepare such reports? What was the fee he charged and how did he was paid the fees? 391. This report is really much in doubt. It does not inspire any confidence. This valuation report does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been cross-examined at a length. He has categorically stated that though they assessed the value as per CPWD rates but area-wise cost index is applied by them. 397. It is argued that the report did not have rough notes with it but it is not true. There are large number of notes with this report. There are measurements, which were apparently were done at the spot. There are calculations. As stated, this report runs in about 60 pages. Report Ex. A-594 is a report with its basis. The opinion is not simpliciter. It is based on measurement (notes are part of the report). It has basis of analysis, like analysis of rates and plinth area calculation. It is thereafter the abstract of cost has been done. 398. It is true that PW255 Rajesh Tomar could not tell about the width of the wall as well and the depth of the foundation. But, it does notvitiate the report. This report Ex. A-594 and horticultural and agricultural report as well Ex. A-400 the report with regard to furniture has rightly been relied on by the court below. In view of it, this Court is of the view that the electric valuation at ₹ 18,38,155/-, horticultural valuation ₹ 12,847/-, civil valuation at ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch memo Ex. A-491. According to him, an income tax file was also recovered during the course of search, which this witness has proved as Ex. A-497. In search memo Ex. A-491, at Sr. No. 5, income tax return file is recorded. It is argued on behalf of A-3 that ITR HUF of A-3 has not been considered by the IO. It has also been argued that the valuation report Ex. A-231 was got prepared by A-3 for the purposes of income tax return. 405. As discussed, the valuation report Ex. A231 is not reliable. First of its report was prepared on 24.06.1999. Ex, A-497 contains 81 papers. PW 212 Anil Kumar has stated about all these papers (43A/1 to 43A/81). It is jointly marked as Ex. A-497. The details of ITRs of A-3 are as hereunder:- ITR of A-3 As HUF As Individual Sr. No. Assessment Year Income Documents Assessment Year Income Document 1. 43A/1) 2000-01 48,500- House Property (Monastery) 75,000-Agriculture - Calculation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proof of agricultural income has been written with one ink and balance sheet and valuation receipt from monastery in ground floor is written with another ink. Document No. 4 is not as such valuation report written in this ITR. Instead, it is recorded as valuation receipt of monastery of ground floor. What is this valuation receipt? 408. ITR for the assessment year 2003-04 is another document in Ex. A-497 (paper no. 43A/3), but in this ITR neither balance sheet nor valuation report of monastery is enclosed. 409. It may be noted that with Ex. A-231, there is a valuation report of dated 22.06.2003 (which speaks that it is till 31.03.2003), which fall for the assessment year 2003-04. If A-3 had obtained valuation report dated 22.06.2003, why he did not enclose the valuation report with his ITR for the assessment year 2003-04? 410. For the assessment year 2002-03, the ITR is in Ex. A-497 (Paper No. 43A/6). In it also, there is no balance sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence, he worked with A-3. This argument has less merit for acceptance. Even if PW 190 Sushil Kumar Singh had an account with A-3 since the year 1999, it makes no difference. In the instant case, the connection between PW 190 Sushil Kumar Singh and A-1 is well established. The design is explicit. The presence of A-1 has been concealed with regard to the Hotel. Even A-3 concealed his presence in official record e.g. registration, bank accounts of the hotel, etc. 416. In his examination under section 313 of the Code, A-3 has stated that he had income to construct the hotel. A-3 and his wife both were working in the university. The net salary of A-3 was ₹ 21,03,355/-. The net salary of his wife was ₹ 13,29,509/-. They have spent ₹ 10,95,495/- on LIC policies, etc. The investment in the policies was done by A-3 and his wife for more than 30 % of their earnings. They were left with about ₹ 23 Lakhs. Their expenses, their children expenses, were to be incurred by them. 417. A-3 has also stated in his statement under section 313 of the Code that he had taken loan for the purpose of hotel but no documents have been filed or proved. He had also stated that his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the hotel through PW105 Umakant Singh and PW190 Sushil Kumar. 422. It is true that some of the witnesses have stated that A-3 constructed the Hotel. They did not support the prosecution case. It does not doubt the prosecution case. The prosecution has proved its case beyond reasonable doubt. 423. Therefore, having considered the entirety of the fact, this Court is of the view thatthe hotel was constructed by A-1 in the name of A-3. A-1 is owner of the hotel. This is benami property of A-1. Agricultural land at Village Pondha in Dehradun 424. According to the prosecution, A-1 purchased 54.83 bigha land in the name of Abhay Kumar Singh and Vinay Kumar (34.74 bigha in the name of Abhay Kumar Singh for a sale consideration of ₹ 12,49,100/- including stamp duty and 20.09 bigha in the name of Vinay Kumar for sale consideration of ₹ 5,93,800/-, including stamp duty). These purchases were done by executing 12 sale deeds between 2002 and 2004. It is also the case of the prosecution that both Abhay Kumar Singh and Vinay Kumar did not have source of income to purchase the property. Both were close to A-1. The property dealer Rajul Agarwal and PW 100 Gaurav Tripat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scussion 429. The connect has to be appreciated first. Rajul Agarwal, according to the prosecution, was a property dealer in Dehradun at the relevant time. He was close to A-1. With him was PW 100 Gaurav Tripathi; they both got the sale deeds executed at the instance of A-1 after taking money from it. 430. The vendors are PW 2 Boondi Ram, PW 91 Kamal Singh, PW 57 Virendra Kumar Gupta, PW 59 Vijay Singh Thapli, PW 106 Mohan Singh, PW 206 Vinay Gupta and PW 226 Shobhit Mathur. 431. PW 2 Boondi Ram has stated that he and his brother Megha Ram were not interested in selling their land, but Rajul Agarwal and PW 100 Gaurav Tripathi pressurized them to sell the land. PW 91 Kamal Singh is the nephew of PW 2 Boondi Ram. He has also stated that in the year 2002, Rajul Agarwal and PW 100 Gaurav Tripathi contacted them with regard to purchase of land. This witness declined to sell their land because it was their only source of livelihood. But, according to this witness, he was asked by PW 100 Gaurav Tripathi and Rajul Agarwal as to what this witness wants.In reply to it, this witness told that he wants some job. He was assured job in the income tax department by Rajul Agarwal and PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uyer Abhay Kumar Singh, it has been signed by Rajul Agarwal. vii. Sale deed dated 5.6.2004 executed in favour of Abhay Kumar Singh, Ex. A-110. It is signed by Ranjan Kumar Gupta as a representative of Abhay Kumar Singh. viii. Sale deed dated 23.07.2004 executed in favour of Abhay Kumar Singh, Ex. A-100. (PW 59 Vijay Singh Thapli has also proved it). This sale deed has been signed by Rajul Agarwal as buyer. ix. Sale deed dated 09.08.2002 executed in favour of Vinay Kumar, Ex.A-111. Rajul Agarwal signed it as a witness. PW 226 Vinay Gupta has also stated that the sale deed was executed by his father Nand Kishore Gupta. x. Sale deed dated 19.03.2003 executed in favour of Vinay Kumar, Ex. A-112. Rajul Agarwal signed this sale deed as a representative of the buyer. PW 206 Vinay Gupta has also proved this sale deed stating that it has been executed by his father. xi. Sale deed dated 16.08.2002 executed in favour of Vinay Kumar, Ex. A-113. It has also been signed by Rajul Agarwal. 436. PW 100 Gaurav Tripathi has also stated that he along with Rajul Agarwal had approached various vendors in village Pondha. The sale deeds were executed in the name of different p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure 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 from Bihar. This witness admits that he also knew A-1. Vinay Kumar was studying CA at the relevant time. 443. Vinay Kumar did file one income tax return on 17.03.2006. It is Ex. A-264 proved by PW 107 S.C. Puri. Except it, according to this witness, other ITRs of Vinay Kumar were not traceable. This ITR, Ex. A-264 is for the assessment year 2005-06. In it, the address of Vinay Kumar is of Laxmi Nagar, Delhi. His income from salary is ₹ 84,000/- and some profits at ₹ 16,500/-. The total income, according to this ITR, is 1,00,800/-. Interestingly, in all the three sale deeds executed in the name of Vinay Kumar, which are Ex. A-111, A-112 and A-1113 dated 09.08.2002, 19.03.2003 and 16.08.2002, respectively, the address of Vinay Kumar is 26, DL, Road, Dehradun. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gaurav Tripathi. ii. A-1 met some of the vendors. A-1 pressurized them to sell their land. iii. The buyers were even offered job in the Income Tax Department. iv. Rajul Agarwal was closely associated with A-1. From the house search of Rajul Agarwal, a photo copy of life insurance policy of A-1 was also found. v. Abhay Kumar Singh and Vinay Kumar were never present at the time of execution of sale deed. vi. Vinay Kumar did not have the source of income to purchase the land. vii. In some of the sale deeds, Rajul Agarwal signed for the buyers. viii. In all the sale deeds of Vinay Kumar, the house address of Rajul Agarwal has been written as the address of the buyer. 450. Another buyer is Abhay Kumar Singh. He also never appeared for execution of the sale deeds. He is father of A-4, in whose name a flat was purchased in Noida by A-1. This has already been discussed by this Court. In fact, A-4 has been very close of A-1. A-4 assisted A-1 in construction of the Rajpur Road house. 451. PW 74 Prakash Upadhyaya and PW 75 Arjun Singh are two important witnesses. They have stated that the income tax return of Abhay Kumar Singh was given by A-1 and thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yer was never present. A-1 managed the whole affairs. It is A-1, who had paid money to Rajul Agarwal, so that it may be given to the vendors. PW 100 Gaurav Tripathi has established and proved it. According to PW 100 Gaurav Tripathi, the actual buyer has paid money to Rajul Agarwal. The witnesses have stated that it was A-1, who was talking to them with regard to purchase of the land. So, if Abhay Kumar Singh is not made an accused, it does not affect the trial of A-1 for holding property in the name of Abhay Kumar Singh and Vinay Kumar. 457. Having considered, the entirety of facts and circumstances, this Court is of the view that, in fact, the Pondha land, through 12 sale deeds was purchased by A-1 in the name of Abhay Kumar Singh and Vinay Kumar. The Pondha land is benami property of A-1. The court below has rightly concluded on this aspect. The finding of the court below does not warrant any interference. Plot number 10, block C Sector 50 Noida, Gautam Buddh Nagar, Uttar Pradesh 458. This plot has been purchased in the name of A-2 on 15.11.2003. It is the case of the prosecution that infact A-2 did not purchase it. It was purchased by A-1 through his younger brother A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 ₹ 4 Lakhs through draft and remaining amount of the plot had already been paid by A-2 to the authority. This witness has proved the transfer deed Ex.A-356. There is a contradiction between the statement made in the transfer deed Ex.A356 and in the statement of PW157 Bhanu Pratap Singh. 466. As a witness, PW157 Bhanu Pratap Singh has stated, in the last sentence of paragraph 1 of his statement, that the remaining amount had already been paid by A-2 to the authority. It means that when the transfer deed was executed till then, all the dues of the authority had been paid by A-2 and on that date a draft of ₹ 4 Lakhs was given to PW157 Bhanu Pratap Singh. 467. In contrast to it, in the transfer deed Ex. A356, PW157 Bhanu Pratap Singh and A-2 agreed that on that date, a draft of ₹ 4 Lakhs was given to PW157 Bhanu Pratap Singh and in paragraph 3 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted. 472. This Court is cautious at every stage that, any presumption or inference may not be in the realm of conjecture and surmises. The court is cautious as to what could be presumed legally regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. A mother wants to purchase a property and she is with her son, if the vendor wants a demand draft, the common course of natural events suggests, and, in fact, human conduct also indicate that the mother would either make the draft from her own account on her own or would ask her son to make a draft. Where is the question of giving Rs. Four Lakhs in cash to PW164 Sanjay Kumar Jain so that he may prepare draft? In his cross-examination, PW164 Sanjay Kumar Jain has tried to justify preparation of draft when he said that A-2 had given money to Arunabh Suman and Arunabh Suman gave money to this witness for preparing draft. This is not reliable. Fact remains, draft for sale consideration of Rs. Four Lakhs was given from the joint account of PW162 Rajendra Kumar and PW164 Sanjay Kumar Jain. Why did Sanjay Kumar Jain prepare the draft? Who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs draft was given to PW 157 Bhanu Pratap Singh on 15.10.2003 and ₹ 11,20,640/- was to be deposited with the authority. But, this document D209/8 does not reveal that any payment of ₹ 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 ₹ 11,20,640/- to the authority, it was never paid as per D209/8 (it is part of Ex. A-213). 477. On behalf of A-1, it is also argued that the sale consideration for the plot was withdrawn by A-2 from her two bank accounts. One account no. 15252 in the name of A-2 and Suniti, the daughter of A-2 at State Bank of India Nabinagar, Bihar and another Dena Bank account no. 2723 of Dehradun. The Court, at this stage, would like to discuss in a little detail about the account no. 15252 of Nabinagar, Bihar in the name of A-2 and Suniti Suman. 478. PW211 Premanand Yadav has proved the joint account opening form (Ex. A-267) of this account by which the account was ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,00,000/- Ajay Kumar Singh 19. 25.02.2004 3,00,000/- Ajay Kumar Singh 20. 09.06.2004 11,99,000/- Ajay Kumar Singh 21. 20.04.2005 7,00,000/- Ajay Kumar Singh 22. 21.05.2005 50,000/- Ajay Kumar Singh 23. 30.05.2005 3,00,000/- Ajay Kumar Singh 479. According to PW211 Premanand Yadav, till 30.06.2005, in this account no. 15252, ₹ 67,85,000/- were deposited in cash. These all vouchers have been exhibited as Ex. A261. It is important to note thatAjay Kumar Singh is father of PW105 Umakant Singh in whose name, the account of Uruvella International hotel was opened. PW105 Umakant Singh has identified signatures of his father on these vouchers, Ex. A-261. Not only this, PW211 Premanand Yadav has stated about the cheques issued from this account by A-2. Most of the cheques have been issued in the name of Ajay K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by A-2. The transfer deed Ex.A-356 reveals that remaining amount of ₹ 11,20,640/- was to be paid by A-2, But the record of authority does not reveal that on any date ₹ 11,20,640/- was deposited by anyone. 485. It is also argued that Rs. Four Lakhs was withdrawn by A-2 on 10.10.2003 from her Dena Bank account. It does not also connect with the purchase of this plot. 486. This Court has not found the statement of the PW164 Sanjay Kumar Jain reliable when he has stated that Rs. Four Lakhs cash was given by A-2 to him for preparing the draft. The link in the instant case are much connected. A-1 is the source of all activities. An account of A-2 and Suniti Suman was opened at Nabinagar, Bihar. Ajay Kumar Singh was depositing huge amounts on that account. The source of that money is not disclosed. PW105 Umakant Singh is son of Ajay Kumar Singh. He was also working for A1 in running the Uruvella International Hotel. As discussed hereinbefore, PW164 Sanjay Kumar Jain is another instrument in the process. He was instrumental in getting the flat registered in the name of A-4 which, in fact, was purchased by A-1 as held by this Court. PW 164 Sanjay Kumar Jain was instrum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) A-2 has not been questioned on the question of partition of HUF in her examination under section 313 of the Code. Hence, that part cannot be taken into consideration. 490. Learned Senior Counsel for A-1 would submit that the prosecution witnesses have stated that A-2 was member of the society. He would submit that the following points have also been proved by the witnesses:- (i) Payments were received through cheques or drafts. (ii) The flat was allotted to A-1 and ₹ 17.50 Lakhs were paid by her. (iii) Original allottee was A-2 and name of A-1 was only for the purpose of reference. (reference has been made to the statement of PW 83 Parsenjeet, PW 161 Ram Mohan Tiwari and PW 137 Sandeep Pandey.) 491. Learned Senior Counsel for A-1 has challenged the finding of the court below on the following grounds:- (i) The court below gave its observation on the basis of conjecture and speculation without appreciating the facts. (ii) It is a matter of record that prosecution has already admitted huge agriculture income shown in the ITR HUF of A-2. (iii) A-2 has categorically explained her stand about the cash deposit in account no. 15252 SBI Nabinagar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Society, Lucknow. According to him, the flat was allotted to A-2. She had already deposited ₹ 17,50,000/- till 02.05.2006. He has stated that they would contact A-1 with regard to payments of the flat. And, as soon as they would make the telephone call to A-1, they would receive the payment. 495. PW 137 Sandeep Pandey was also a member of the society. He has proved the bylaws, seizure memo, by which, documents were taken by CBI. According to him, in the ledger, name of A-1 is printed and thereafter, name of A-2 has been recorded on it. 496. It is true that as per witnesses, the flat was allotted to A-2. It is also true that as per the prosecution witnesses also, the payment was made from the account of A-2 or from some other account. It was not in cash. 497. The question of affidavit having been filled up by A-1 will also be considered. PW 83 Parsenjeet has proved Ex. A-206 by which the details were given to the investigating officer with regard to the payment made in the flat. 498. On behalf of A-2, it is being argued that Rs. Four Lakhs was transferred in the account of the society from the account of Ajay Kumar Singh, which was taken by A-2 as loan. This Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e took loan against the plot in the name of A-2, in which A-1 stood as a guarantor. It is revealed during investigation that it is A-1, who used to maintain the loan account. According to the prosecution, it is the property purchased and owned by A-1 in the name of A-2. 503. The court below accepted the prosecution case. It was held that allotment of plot was done in the name of A-1. A-2 wanted that the plot be transferred in her name, but it was denied repeatedly at many occasions. A-1 was maintaining the loan account. A-1 was in possession of various blank cheques of A-2. Certain amount was paid by A-1 against the plot. The transaction sheet of cheque no. 571724, which was issued in the name of USHA, was in the handwriting of A-1. It is A-1, who was acting on behalf of A-2. A-1 was the guarantor for the loan taken by A-2. Thereby the court concluded, that A-1 concealed his presence in the records. He deliberately took loan in the name of A-2. It is Benami property of A-1. Arguments 504. On behalf of A-2, learned counsel would submit that the plot was allotted to A-1, who with the permission of the Society transferred it to A-2 by a resolution of USHA. Reference has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rakhand Cooperative Societies Act, 2003. It was registered on 12.09.2003 (the registration certificate is first document taken into custody by the CBI along with seizure memo Ex. A-250). The registration certificate of the USHA was seized during investigation. The seizure memo has been proved by PW 101 Satish Kumar Shukla. 510. According to PW 101 Satish Kumar Shukla, he was the Honorary Secretary at the relevant time. He gave documents pertaining to the USHA to the IO with his communication, Ex. A-250. He has proved Ex. 251. It is an application of A-2. By means of this application, A-2 had requested the Secretary, USHA that her son A-1 is the Income Tax Commissioner, who is member USHA. Since A-2 is the mother of A-1, the USHA got loan sanctioned from SBI, Rajpur Road, Dehradun. On 14.02.2004, a decision has been taken that a family member may also obtain a plot. According to the communication Ex. A-251, A-2 was given the plot, therefore, she be handed over the documents. According to this witness, the plots were allotted by a draw on 10.09.2006. Plot No. 82 was allotted to A-1. This witness has proved this allotment list, Ex. A-252. 511. There is another important document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to default in payment, which is paper no. 1298/2. He has identified his signature on it. 516. In his cross-examination DW1 Alok Kumar Jain has accepted that the communication, which he had made to A-2, was with regard to the loan and not membership of A-2 in USHA. 517. DW6 T.N. Singh has also stated that USHA was registered in the year 2003. According to him, 92 members were issued shares. Most of the members had taken plots in the name of their family members. According to this witness, he had also taken plot jointly with his wife. This witness has also not proved any document. He has stated about the documents. The court below did not believe this witness. This witness was shown the allotment list of the plots. He has admitted that in the list, a plot was issued in his name and not in his wife s name, as told by him in his examination-in-chief. The evidence of DW 6 T.N. Singh does not, in any manner, support the defence case. 518. Reference has been made by the learned Senior Counsel for A-1, to Ex. 336, which is proved by PW142 S.S. Tomar. It is an information by the bank that the loan has been sanctioned in favour of A-2. The loan application of A-2 is Ex. 334. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deals with an asset, which was acquired during the check period. Ex. A-253 is minutes of meeting of USHA dated 22.07.2017. Under Agenda no. 3, an issue raised by A-1 has been discussed to conclude that original share of the plot is not in the name of A-2, but A-1 is the original share holder. This agenda also records that similar requests had already been decided in the year 2011 and 2015. Those resolutions have also been filed, but they have not been proved as such because the original records were not placed before the court below. The Court leaves it at it. 523. Ex. A-252 and Ex. A-253 prove in abundance that the plot was allotted in the name of A1. Loan was taken by A-2, but she was not a member, when she applied for loan. Member was A-1. A-1 is guarantor for the loan taken by A-2. This Court has concluded earlier that A-2 had no source of income to purchase huge property at the relevant time. It is the period, when the property at Noida was being purchased. It is the time when property at Lucknow was being purchased and a house at Rajpur Road, Dehradun was being constructed. 524. The court below has taken into consideration the blank cheque books of A-2, which were found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so. 528. Learned counsel for A-2 would submit that A-2 had purchased Palio car from Prema Arya, which she sold for ₹ 3,50,000/-. The proceeds were deposited in her account. A-2 purchased the Car by taking a loan and by making the remaining payment from the account of Dena Bank in which the sale proceeds of Palio car were received. A-2 had source of income; she purchased the Car; A-1 has nothing to do with the Car. 529. Learned Senior Counsel for the CBI would submit that A1 enquired from PW 102 Rajeev Mittal for purchase of Palio car. Then Palio car was purchased in the name of Prema Marya with a registration number 0006. A-2 had not made any payment of car to Prema Marya. A-1 wanted a fancy number of Delhi for the Honda City car, therefore, he used ration card of PW 185 Rajeev Kumar for registration. Three cars were used by A-1, viz., Ambassador, Palio and Honda City. All had fancy numbers. All was playing with the documents in the way he designed. It is argued that the Car was purchased by A-1 in the name of A-2. Discussion 530. This Court is cautious of the fact that merely because two persons have some links, property purchased by one may not be termed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of Rajeev Kumar. This witness has proved the application of PW 185 Rajeev Kumar for obtaining ration card at his D-64, Gulmohar Park, Delhi address (Ex. A-295). The ration card no. 2864 was issued in the name of PW 185 Rajeev Kumar. This witness has also proved other documents. 536. PW 185 Rajeev Kumar has stated that he was developing USHA, a Housing Association. A-1 was having a plot in this society. This witness knew him. He did not support the prosecution case, but he has proved the seizure memo Ex. A-444 and his ration card Ex. A-445. 537. PW 233 Sunil Kumar Upadhyaya was working in the Regional Transport Office, Agra at the relevant time. He handed over the documents to the IO during investigation. He proved the seizure memo Ex. A-536 and application of A-2 for change of address, Ex. A-537 and a ration card, which was given for change of address of A-2. It is Ex. A-538. 538. The link is more than established. A-1 and PW 185 Rajeev Kumar were acquaintance. A-1 had a plot in USHA. PW 185 Rajeev Kumar was the developer. A car was to be purchased at Delhi number. The ration card of PW 185 Rajeev Kumar had been forged and instead of PW 185 Rajeev Kumar and his famil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Ex. A-328 has been proved by this witness, which has mark of Q 31 at the signature of A-2. It, according to forensic report was signature of A-2, which means A-2 gave her wrong address of D-64, Gulmohar Park, Delhi for registration of the Car. As stated, ration card, Ex. A-538 had been submitted along with it, which was also forged. 544. PW 217 Gunveen Singh has stated in para 10 of his statement that he did not tell it to the IO that the car was delivered to Ranvir Singh, who was Gunner of A-1. PW177 constable Ranvir Singh has though not supported the prosecution case, but in his cross-examination, he has admitted in para 13 that he took delivery of the Car on 26.11.2004 and he signed on it, which is Ex. A-443. Though, according to him, he was not instructed by A-1 to take delivery of the Car. According to him, a boy had come to leave the vehicle and he signed it. This statement of PW 177 Ranvir Singh to the extent that under nobody s instruction he took the delivery, is not reliable. He was Gunner of A-1. It can very well be presumed that he took the delivery of Car under the instruction of A-1. 545. It is the defence that a Palio car was sold and with its sale proceeds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught and the same number 0021 was obtained for the Honda City Car. (Fancy number allotment slip is D 221/6, which is part of Ex. A-329, as proved by PW 140 Ashok Kumar). PW 147 Amardeep Singh has categorically stated that it is PW 217 Gunveen Singh, who had forwarded the documents including the forged ration card saying that the car belongs to a senior Revenue Officer. 550. These all points connect A-1 with the car. In fact, according to the invoices, ₹ 1,00,000/- was deposited from some IDBI Bank of Agra in the name of A-2. Who did it? Who deposited money in the name of A-2? 551. Having considered all the attending circumstances and evidence on record, this Court is of the view that the prosecution has been able to prove that it is A-1 alone, who has done all these things. It is A-1 alone, who had obtained a car number of his choice from Delhi on some forged documents. A-1 is owner of the Honda City Car. He got it registered in the name of A-2. It is Benami property of A-1. The court below has rightly concluded that the Honda City Car is the benami property of A-1. There is no reason to interfere. Section 11 of the Act 552. A-1 has also been convicted under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Senior Counsel is missing in the instant case. 556. Reference has been made to the judgment in the case ofS.N. Khosla (supra - Relevant paras 6 7 of the judgment have been quoted hereinbefore). 557. Learned Senior Counsel for A-1 has also argued that the trial court forgot to appreciate that the conduct , morality and bribe are issues different from disproportionate assets. Reference has been made to the case of V.K. Puri (supra) and Vishwa Vibhuti (supra). 558. In the case of V.K. Puri, the Hon ble Supreme Court has also observed that In a case involving Section 13(1)(e) of the 1988 Act, what is necessary is as to whether keeping in view the period in question, commonly known as check period, the public servant has acquired wealth which is disproportionate to his known sources of income. It has nothing to do with individual case of bribery. It has nothing to do with a series of acts culminated into an offence . 559. In the case of Vishwa Vibhuti (supra), as stated, the Hon ble Delhi High Court, inter alia, laid down the principle as to what material may be looked into at the time of framing of charges. DISCUSSION 560. At the relevant time, Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. He has proved a few documents. He has also not supported the prosecution case. He has been cross-examined by the CBI and confronted with certain documents, particularly challans for transporting the goods, which are in the name of A-1. He proved the documents, Ex. A-28 to Ex. A-31. 566. This witness has not stated that he did not receive consideration for the articles sent to A-1. Merely because some articles were sent from his shop, the court cannot presume that A-1 did not pay for it. The court below did not appreciate the evidence in correct perspective on this account. The fact remains that PW 8 Prashant Kochar has not stated that A-1 did take any valuable thing without consideration from him. Even otherwise, prosecution has not even shown that there were any official link or any business pending before A-1 pertaining to PW 8 Prashant Kochar at any point of time. 567. PW 10 Rakesh Oberoi has stated that a car belonging to A-1 was repaired in his garage, but he has not stated that A-1 did not pay for it. As also, the prosecution has not established that PW 10 Rakesh Oberoi had any proceeding pending before A-1 at any point of time. 568. PW 13 Amarnath Ahuja has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to PW 71 Mukesh Chandra Arora on this point is not in accordance with law. 573. PW 188 P.S. Kochar has also not supported the prosecution case. He has categorically denied that A-1 ever demanded anything from him. This witness has been declared hostile by the CBI and he has been cross-examined. Nothing has been elicited in the cross-examination of this witness, which may, in any manner, support the prosecution case. 574. This Court has concluded that, in fact, the Rajpur Road house was constructed by A-1 and building materials and other construction materials were procured by A-1 through various persons, including PW 128 Shivdev Singh Marya and A-4. This has already been discussed in the earlier part of this judgment. But, merely because A-1 has procured building materials and other articles for construction of the Rajpur Road house, it cannot be presumed that he did not pay for it. 575. PW 176 Mohd. Hasamtulla, PW 223 Kailash Chand Mishra and PW 235 B.K. Todiwala have stated about certain documents. The prosecution has examined these witnesses with regard to a cancer patient certificate in the name of A-2. In order to attract the provision of Section 11 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ricks to A-2 and received payment. This Court had already concluded that the Rajpur Road house was constructed by A-1. It categorically means that PW 88 Ramesh Batta had provided bricks to A-1. Initially this witness was not truthful to the Court. PW 88 Ramesh Batta also denied that PW 6 I.K. Batta told it to him that A-1 demanded ₹ 5,00,000/-. 579. PW 88 Ramesh Batta has, in his cross-examination, admitted that he had changed his CA. In his cross-examination by the appellants, PW 88 Ramesh Batta has stated that he changed PW 6 I.K. Batta as his CA because he was not handling his case professionally. He denied the suggestion that at the instance of A-1, he changed his CA PW 6 I.K. Batta. 580. PW 60 Suresh and PW 61 P.S. Krishnamurti were working in the Vigilance Department of Income Tax. They have proved Ex. A101 and Ex. A-102. Ex. A-102 is a seizure memo by which certain complaints against A-1 were given to CBI. At Sr. No. D of it, there is a complaint of PW 6 I.K. Batta. It has been proved by PW 6 I.K. Batta as Ex. A-17. It supports the statement of PW 6 I.K. Batta. 581. The statement of PW 6 I.K. Batta is transpiring confidence. He was Chartered Accountant to PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine. Explanations . (a) Expecting to be a public servant . If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section. (b) Gratification . The word gratification is not restricted to pecuniary gratifications or to gratific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that even if charge under Section 7 of the Act has not been framed against A-1, he is liable to be convicted thereunder. 589. A-1 has been sentenced to 5 years of rigorous imprisonment and a fine of ₹ 10,000/- under Section 11 of the Act. While convicting A-1 under Section 7 of the Act, the same sentence may be imposed on him. Similarly, A-2, A-3 and A-4 are liable to be convicted under Section 109 IPC read with Section 13(2) read with Section 13(1) (e) and Section 7 of the Prevention of Corruption Act, 1988. The sentence imposed on appellants A-2, A-3 and A-4 may remain unaltered. OTHER LANDS 590. The prosecution has also levelled allegations against the appellants with regard to property situated in Village Bagral, MussoorieDehradun Diversion Road, Dehradun as well as shops in Medow Shopping Complex, Dehradun, but the court below has held that the prosecution could not prove its case with regard to these properties. It is not challenged. Therefore, it does not require any deliberations. CONFISCATION OF PROPERTIES 591. In the instant case, the IO also filed an application for attachment of the properties under Section 3 of the Ordinance, read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Appeal No. 164 of 2019 is liable to be disposed of with the above modification in the conviction and sentence. 600. When these appeals were fixed for delivery of judgment on 08.02.2022, it was informed by A-1 by way of filing Misc. Application No. 14551 of 2022 that A-2 has died on 25.01.2022. On the death of an appellant, the appeal abates unless it is continued by the relatives of the appellant. 601. Section 394 of the Code provides for the procedure. It is as hereunder:- 394. Abatement of appeals. (1) Every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. Explanation . In this section, near relative means a paren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple imprisonment for a further period of four months. 606. A-4 is liable to be convicted under Section 109 IPC read with Section 13(2) read with Section 13(1)(e) read with Section 7 of the Act. A-4 may be sentenced to undergo rigorous imprisonment for a period of 4 years and a fine of ₹ 20,000/- under Section 109 IPC read with Section 13(2) read with Section 13(1)(e) read with Section 7 of the Act. In default of payment of fine, simple imprisonment for a further period of four months. 607. Criminal Appeal Nos. 116 of 2019 and125 of 2019 are liable to be disposed of with the above modification in the conviction and sentence. 608. In Miscellaneous Case No. 09 of 2014, the court below has attached and confiscated the properties under the provisions of the Ordinance. This order is in accordance with law. This order is liable to be upheld and confirmed. CONCLUSION 609. The conviction of the appellant Swetabh Suman for the offence punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 is upheld and confirmed. The sentence imposed on the appellant Swetabh Suman under Section 13(2) read with Section 13(1)(e) of the Preve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remain unaltered. 619. The appellants Shwetabh Suman, Dr. Arun Kumar Singh and Rajendra Vikram Singh are on bail. Their bail bonds are cancelled and sureties are discharged of their liability. They be taken into custody to serve out the sentence imposed on them. 620. Let a copy of this judgment along with the lower court record be forwarded to the court below for compliance. _______________________________________________________ *After amendment (w.e.f. 26.07.2018), Section 11 of the Act is as hereunder:- 11. Public servant obtaining undue advantage, without consideration from person concerned in proceeding or business transacted by such public servant.-Whoever, being a public servant, accepts or obtains or attempts to obtain for himself, or for any other person, any undue advantage without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the official functions or public duty of himself or of any public servant to whom he is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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