Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Reserved on: December 19th , 2008 Date of Decision: February 13 , 2009 Criminal Revision Petition No. 930 of 2006 Shri Dharambir ..... Petitioner Through: Mr. Siddharth Luthra, Sr. Advocate with Mr. Abhijat and Mr. Sunil Kumar, Advocates. Versus Central Bureau of Investigation ..... Respondent Through: Mr. Ashiesh Kumar, Advocate Mr. R.M. Tewari, Advocate AND Criminal Revision Petition No. 6 of 2007 Shri K.M. Johri ..... Petitioner Through: Mr. Atul Kumar, Advocate. Versus The State & Anr. ..... Respondents Through: Mr. Ashiesh Kumar, Advocate Mr. R.M. Tewari, Advocate AND Criminal Revision Petition No.891 of 2006 Shri M.K. Sharma ..... Petitioner Through: Mr. Mukesh Anand with Mr. Shailesh Tiwari, Advocates. Versus State through CBI ..... Respondent Through: Mr. Ashiesh Kumar, Advocate Mr. R.M.Tewari, Advocate Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 2 CORAM: HON'BLE MR. JUSTICE MANMOHAN 1. Whether the Reporters of local papers may be allowed to see the judgment?Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes J U D G M E N T MANMOHAN, J 1. The present three criminal revision petitions have been filed under Sections 397,401 and 482 of the Criminal Procedure Code, 1973 (hereinafter referred to as „Cr.P.C.‟) seeking quashing of the order framing Charges dated 23rd September, 2006 passed by Mr. G.P. Mittal, learned Special Judge, CBI, Delhi. Since the impugned order is common to all the three revision petitions which arise out of one charge sheet, all the three petitions are being disposed of by a common order. 2. The details of the Charges mentioned in the Charge Sheet filed by the respondent is reproduced hereinbelow for ready reference:- “This case was registered on the basis of source information. The allegation made in the FIR is that Sh. Dharamvir Khattar entered into a criminal conspiracy with S/Sh. S.K. Mittal and P.L. Garg, both JEs of DDA and other unknown DDA officials and in furtherance of the said conspiracy attempted to cheat and cause pecuniary loss to Gov. exchequer by using the premises of Bhairon Mandir Samiti and Hari Chand Prakash Wanti Trust as hotel as against the agreed religious purposes and the said DDA officials facilitated the same. Investigation has revealed that on 17.01.1986, an area of 600 sq. meters was allotted to Bhairon Mandir Samiti for religious purposes, through Sh. Dharamvir Khattar at Plot No. 1 near Kalindi College, East Patel Nagar Institutional Area, Prasad Nagar, New Delhi. The said allotment for religious purposes was apparently made on the basis of false declarations by Sh. Dharamvir Khattar and even the building plan was got sanctioned on the basis of false declarations in the form of proposed building plan. The following construction upto second floor was falsely proposed Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 3 as neither the construction nor the use of the allotted land/plot was done as per the aforesaid declarations:- 1) Basement for storage purposes. 2) Ground floor having 3 rooms i.e. one Account Room, one Manager‟s Room, one Store, one Kitchen, one Sitting Room, 7 toilets, lift and staircase. 3) Mezzanine floor having 4 store rooms and staircase. 4) First floor having one library room, one dispensary, one reading room, one Doctor‟s/waiting room, one yoga room each for ladies and gents, 4 bathrooms, 3 toilets and one store. 5) The second floor having one prayer hall, 3 store rooms, one meditation room each for ladies and gents, 2 toilets, one pantry and one lift. Investigation has revealed that the construction was got carried out by Sh. Dharamvir Khattar in blatant violation of the aforesaid approved plan. On 08.07.1988 Sh. Dharamvir Khattar applied to DDA for issue of completion certificate. The inspection of the premises was referred/ marked to Sh. K.M. Johri, JE, Building Branch, DDA, Vikas Sadan, New Delhi as Prasad Nagar area was under his jurisdiction. As JE (Building), he was required to inspect and correctly submit a report about the site regarding unauthorised construction on the land allotted by the DDA. However, Sh. K.M. Johri entered into criminal conspiracy with Sh. Dharamvir Khattar and in pursuance thereof inspected the premises of Bhairon Mandir Samiti and submitted dishonestely a false NOC report on 16.08.1988 to the effect that the building had been constructed upto second floor only i.e. as per sanctioned building plan. Investigation revealed that during the relevant period the said building was unauthorizedly constructed upto 4th floor on Plot No. 1, Prasad Nagar and thus Sh. K.M. Johri dishonestly allowed Sh. Dharamvir Khattar to utilize the unauthorised construction in the premises of Bhairon Mandir Samiti, unhindered. On the basis of said false inspection report, the completion/ occupancy certificate was issued by DDA. It has also came to light during investigation that from 1989 onwards, Sh. Dharamvir Khattar started misusing the aforesaid unauthorisedly constructed premises as a restaurant named „Atithi‟. Investigation has revealed that during 1992- April, 1993 Delhi Fire Service and MCD during their inspection found that the aforesaid building was named as “Atithi Guest House” and not “Bhairon Mandir Samiti”. The Delhi Fire Service also found that the premises consisted of 4 floors with 8 Guest Rooms all very well furnished. A restaurant, reception office, Kitchen was also situated in the ground floor. The premises was named as “Atithi Guest House” and not “Bhairon Mandir Samiti”. Investigation has also revealed that Sh. S. Phogat, JE also inspected the site on 17.08.1993 and reported that a hotel in the name of „Basera‟ was running on Plot No. 1, Prasad Nagar, New Delhi allotted to Bhairon Mandir Samiti. The inspection of the said building was not allowed and as observed from outside Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 4 a basement, ground floor and 4 floors were existing at that time. Investigation further revealed that in violation of sanctioned building plan, Sh. Dharamvir Khattar constructed the said building upto 4th floor including basement and store and a toilet on terrace floor. The set back were also covered unauthorisedly. Even in the year 1997, the misuse of the premises and unauthorised construction continued unhindered due to complicity of Sh. Dharamvir Khattar with Sh. M.K. Sharma, JE as revealed during investigation. It transpired that as required, on reference of DDA vigilance, Sh. M.K. Sharma being JE, Institutional Land (having jurisdiction over Prasad Nagar area), DDA, Vikas Sadan, New Delhi gave dishonestly false report on 01.05.1997 that there was no misuse of the said premises and again on 09.06.1998 on another reference from DDA, Vigilance said M.K. Sharma was required to inspect and correctly submit a report about the alleged misuse of the aforesaid land allotted by DDA in Prasad Nagar area as he was posed as JE, Institutional Land Branch, DDA, Vikas Sadan, New Delhi. However, Sh. M.K. Sharma dishonestly suggested in his inspection reports that the said premises was not being misused. However, on 11.06.1998, the CVO, DDA alongwith other officials of DDA inspected the premises of Bhairon Mandir Samiti and found that in fact a Hotel having 35 rooms with facility of AC, TV was being run by Sh. Dharamvir Khattar at the above site/ building. It has also found during investigation that in the year 1999 Sh. Dharamvir Khattar applied in the office of DCP(Lic) for grant of license under Entertainment Regulation Act, under the grab of “Atithi Dharmshala”. In that application he admitted in his own hand that 8 guests rooms exists on Ist, second and third floor and total floor area utilized for the guest house was 934.50 sq. mtrs. Whereas the approved area was 599.181 sq. mtrs. and the said building was to be constructed upto second floor only as per the sanctioned building plan. Even while the lease cancellation order in respect of the aforesaid premises was issued by the DDA, after inspection by CVO, DDA on 11.06.1998, the premises continued to be misused in the year 2000-03. During investigation, searches were conducted at the office of Bhairon Mandir Samiti, Plot No. 1, Prasad Nagar Institutional Area, East Patel Nagar, New Delhi in March, 2003 in connection with another case i.e. RC AC-3/2003-A-0002 against Sh. Dharamvir Khattar and during searches one bill book for the period 01.04.2002 to 26.02.2003 and photocopy of current visitor book was seized which revealed the booking details by travel agency. During 2002-03, a travel agency by name and style “Supreme Universal International”, Bangalore and “M/s City Heart Travel, Old Golf Compound, Delhi were arranging accommodation for tourists at the premises which was known as BMS (Bharion Mandir Samiti) Hotel. A number of tourists had stayed at BMS Hotel at 1, Prasad Nagar Institutional Area, East Patel Nagar, New Delhi during the year 2002-03. M/s. Supreme Universal International, Bangalore had Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 5 issued a bank draft in favour of BMS Hotel towards the payment of stay of tourists arranged by them and the said demand draft was deposited in the A/c No. 7264 at Canara Bank, Pahar Ganj standing in the name of Sh. Kamal Kumar, S/o Sh. Dharmvir Khattar. Sh. HC Sharma, GM Bharion Mandir Samiti being in conspiracy with Dharamvir Khattar also intentionally facilitated misuse of the premises for commercial purposes. He had also made correspondence with regard to stay of tourists at the said BMS Hotel. The brochure of BMS Hotel shows that photographs of four storied hotel with interior restaurant, corridor, parking house, banquet / conference hall, air- conditioned rooms, reception, lobby, etc. printed on it with detail of facilities available in the hotel. It also revealed that the persons who stayed in the said premises were not involved in any religious activities nor they observed / saw any religious activities in the said hotel. It is also revealed that the said hotel was used exclusively for commercial purpose and no religious activities of any kind ever took place in the said premises. In fact there was also a bar-cum restaurant in the hotel. A number of foreign tourists used to stay in the said hotel and the hotel had a banquet hall where the birth day / weeding functions were frequently done by the nearby residents. Investigation has also established that Sh. Dharamvir Khattar, not only got the aforesaid plot allotted under the false cover of religious purposes thereafter also made unauthorized construction on the plot and used the premises commercially but also did not pay DDA the ground rent which was about Rs. 2,67,810/0. Thus, Sh. Dharamvir Khattar in criminal conspiracy with Sh. K.M. Johri, JE (B) and Sh. M.K. Sharma, JE (IL) both of DDA dishonestly usurped the DDA land but did not put it to the intended welfare purposes and put the DDA to a wrongful loss of about Rs. 2,67,810/-. During investigation it was also revealed that various other DDA officials committed gross mis-conduct but their acts of omission / commission do not disclose criminal intent, therefore, the DDA has been moved to intimate RDA for major penalty proceedings against them for their lapses. The sanction for prosecution in respect of the said Sh. K.M. Johri and Sh. M.K. Sharma is enclosed in original. The aforesaid facts and circumstances disclose commission of offences by S/Sh. Dharamvir Khattar, H.C. Shama, M.K. Sharma and K.M. Johri U/s 120-B, r/w 420 IPC and Section 13(2) r/w 13(1)(d) of PC Act, 1988 and substantive offences U/s 420 IPC and Section 13(2) r/w 13(1)(d) of PC Act, 1988. It is, therefore, prayed that Sh. Dharamvir Khattar, Sh. M.K. Sharma, Sh. K.M. Johri and Sh. H.C. Sharma may kindly be summoned and tried in accordance with law.” 3. Mr. Siddharth Luthra, Learned Senior Counsel appearing for Mr. Dharamvir Khattar contended that the acts and omissions complained of in Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 6 the present charge sheet are prior to coming into force of the Prevention of Corruption Act, 1988 (hereinafter referred to as „P.C. Act, 1988‟) on 9th September, 1988. Consequently, he submitted that the P.C. Act, 1988 has no application and that there cannot be a Charge of conspiracy to commit offences under the said Act. 4. Mr. Luthra further submitted that there was lack of any material to frame Charges as in the present case neither the statements made under Section 161 CrP.C. nor documents filed with the charge sheet satisfy at the inception the ingredients of Sections 415/420 of the Indian Penal Code (hereinafter referred to as „IPC‟) as admittedly application for allotment was made in 1984, the plot was allotted in 1985 and the alleged unauthorized construction/misuse commenced in late 1980s or early 1990s. He further contended that there was no document or other material on record which would even remotely suggest that any unlawful consideration was paid either by society or the petitioner. He stated that even a bald allegation to this effect was not present in the charge sheet. According to Mr. Luthra for substantiating the allegations against the petitioner, prosecution was required to produce material with the charge sheet which would show existence of mens rea of the petitioner at the time when the Society initially applied for allotment of plot in the year 1984. According to him, development of mens rea subsequently cannot indicate that the petitioner had an intention to cheat at the time of making its application to DDA. In this connection he referred to the judgment of the Apex Court in Anil Mahajan v. Bhor Industries Ltd. & Another, reported in (2005) 10 SCC 228, wherein the Hon‟ble Supreme Court observed as under:- Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 7 “……. A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction.” 5. Mr. Luthra, submitted that by merely making unauthorized construction, misusing the premises and not paying ground rent, the Petitioner cannot be charged under IPC or P.C. Act, 1988. According to him, these alleged contraventions are actionable under the Delhi Municipal Corporation Act or the Delhi Development Authority Act or under the provisions of the Lease Deed but not either under IPC or P.C. Act, 1988. 6. He further stated that in a suit filed by Bhaironji Mandir Society challenging the cancellation of the Lease, the trial court had passed a decree in favour of the Society declaring the cancellation of Lease by Delhi Development Authority (hereinafter referred to as „DDA‟) as illegal. He further stated that even the appeal filed by DDA had been subsequently dismissed. 7. He further stated that the petitioner was a separate legal entity from the Society which had been allotted land. He submitted that there was no concept of fastening of vicarious liability under the IPC or the P.C. Act, 1988. In this context, he referred to and relied upon the judgment of the Hon‟ble Supreme Court in Maksud Saiyed v. State of Gujarat and others, reported in (2008) 5 SCC 668. 8. Mr. Luthra stated that the charge sheet alleges that Shri Dharambir Khattar while committing the aforesaid acts, acted in criminal conspiracy Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 8 with Shri K.M. Johri [JE(B)] and Shri M.K. Sharma, JE(IL). According to him in the present instance, no witness has even remotely suggested that there was a meeting of minds between Mr. Khattar and the other co-accused. He submitted that mere allegation made by the I.O. in the chargesheet that the petitioner acted in criminal conspiracy with the public servant co-accused is not enough. He submitted that the chargesheet is only the opinion of the I.O. The law requires more than this, even at the stage of framing of Charge. 9. Mr. Luthra further submitted that without any material on a mere bald allegation or mere suspicion or speculation, Charges could not have been framed against the petitioner. In this connection, he referred to and relied upon the following judgments:- (A) In Soma Chakravarty v. State through CBI, reported in (2007) 5 SCC 403, the Hon‟ble Supreme Court has observed as under:- “…….Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the court must come to a prima facie finding that there exist some materials therefor. Suspicion cannot alone, without anything more, it is trite, from the basis therefor or held to be sufficient for framing charge.” (B) In State of U.P. v. Dr. Sanjay Singh & Another, reported in 1994 Supp (2) SCC 707, the Hon‟ble Supreme Court in paragraph 19 has observed as under:- “19. When we scrutinize the entire material placed on record, even if unrebutted or totally accepted, we are of the view that they do not make out a case for conviction and the mere suspicion of motive cannot serve as a sufficient ground for framing the charges in the absence of any material, prima facie showing that the particular motive has passed into action and that the accused is connected with that action in question.” Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 9 10. Mr. Atul Kumar, learned counsel appearing for Mr. K.M. Johri reiterated that P.C. Act, 1988 was not applicable to the present case because even as per the prosecution, the alleged offence is stated to have been committed by Mr. K.M. Johri on 16th August, 1988 whereas P.C. Act, 1988 came into force on 9th September, 1988. In this connection he referred to and relied upon a judgment of this Court in Sukhwant Singh AC. v. Union of India, reported in 1997 (1) All India Criminal Law Reporter 460, wherein it has been held, “From the above discussion, it is clear that so far as the first charge is concerned the authority did not apply its mind. The petitioner could not have been convicted or sentenced for this charge under Section 7 of the Prevention of Corruption Act, 1988 because the offence alleged to have been committed during March, 1986 i.e. prior to coming in force of the Act of 1988.” Therefore, according to him neither the P.C. Act, 1988 nor Section 13(1)(d) of the said Act was applicable to Mr. K.M. Johri. 11. He submitted that there is a distinction between Section 5(1) of the old Prevention & Corruption Act, 1947 (hereinafter referred to as „ old P.C. Act, 1947‟) and Section 13(1) of the P.C. Act, 1988. According to him, Section 13(1)(d) of the P.C. Act, 1988 is more wide and liberal as it has contemplated various alternatives whereas Section 5(1)(d) of the old Act is a far more strict provision and further there are no presumptions under the old P.C. Act, 1947. 12. He further submitted that there was no material/evidence on the trial court record to show that the accused had received any pecuniary advantage or valuable thing for himself or for any other accused person and, therefore, he cannot be held guilty of offences under Section 5(1)(d) of the old P.C. Act, 1947 or Section 13(1)(d) of the P.C. Act, 1988. He submitted that to Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 10 frame Charges under Section 5(1)(d) of the old P.C. Act, 1947, it is mandatory to show that the accused had obtained any pecuniary advantage or valuable thing for himself or for any other person. According to him, pecuniary advantage or valuable thing connotes gratification or bribe and further that pecuniary advantage or valuable security should be in reward for giving of favour. According to him, gratification cannot be over stretched to mean any benefit derived by the beneficiary. He submitted that “the other person” mentioned in Section 5(1)(d) of the old P.C. Act, 1947 did not include the beneficiary of favour. According to him, use of word “other” excludes the public servant and the beneficiary. Further according to Mr. Atul Kumar, the important ingredient is obtaining by the accused either for himself or for any other person. He emphasized that obtaining has to be from beneficiary of the favour and, therefore, the beneficiary cannot be the “other person” under Section 5(1)(d) of the old P.C. Act, 1947. According to him the demand is a mandatory ingredient to attract Section 5(1)(d) of old P.C. Act, 1947. In this context, he relied upon the following judgments:- (A) C.K. Damodaran Nair Vs. Govt of India reported in (1997)9 SCC 477 page 52 :- “12. The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused “obtained” the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b) -- and not under Section 5(1)(c), (d) or (e) of the Act. “Obtain” means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the Act Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 11 unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either “acceptance” or “obtainment”. (B) Trilok Chand Jain v. State of Delhi, reported in 1977 Criminal Law Journal 254, wherein it has been held as under:- “……that the gratification must have been received by the accused as “a motive or reward” for committing any act or omission in connection with his official functions. It must be shown that there was an understanding that the bribe was given in consideration of some official act or conduct. It is true that in law the incapacity of the government servant to show any favour or render any service in connection with his official duties does not necessarily take the case out of the mischief of these penal provisions. Nevertheless, it is an important factor bearing on the question as to whether the accused had received the gratification as a motive or reward for doing or forbearing to do any official act or for showing any favour or disfavour in the exercise of his official functions. This question as to whether the government servant receiving the money had the requisite incriminatory motive is one of fact. Could it be reasonably said in the circumstances of the instant case that the money was handed over to the appellant or received by him as a motive or reward such as mentioned in Section 161 Penal Code?” (C) S.P. Yellappa Gowder v. State of Karnataka reported in 1977 Criminal Law Journal (NOC) 154 (KANT), wherein it has been observed as under:- “(B) Prevention of Corruption Act (1947), S.5(1)(d) – “Abusing his position as public servant” – Accused (Excise Superintendent and Inspector) staging raid on godown of tobacco merchant – No evidence regarding demand and acceptance of illegal gratification – No offence.” (D) C. Chenga Reddy & others v. State of A.P., reported in (1996) 10 SCC 193, wherein the Hon‟ble Supreme Court has observed as under:- “On a careful consideration of the material on the record, we are of the opinion that though the prosecution Crl. R.P. Nos. 930/2006, 6/2007, 891/2006 Page 12 has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet, none of the circumstances relied upon by the prosecution are