1. The appeal has been filed against the judgment and order dated 20.11.2012 passed by Special Judge, Ante-Corruption (CBI), Ghaziabad in Special Case No.28 of 2002 CBI vs. Smt. Neera Yadav arising out of Case Crime No.R.C. No.3(A)/98ACU-VII, Police Station CBI/ACU-7, New Delhi under Section 13(1)(d) read with Section 13(2) Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act) district Ghaziabad convicting the appellant for offences under Section 13(1)(d) read with Section 13(2) PC Act and sentencing her with rigorous imprisonment for a period of 3 years and fine of Rs.1.00 lakh and in case of default in payment of fine with simple imprisonment for an additional period of four months.
2. The relevant brief facts of the case are that in furtherance of order dated 20.1.1998 passed by the Hon'ble Apex Court, F.I.R. was lodged by Central Bureau of Investigation on 26.2.1998 at Case Crime No. R.C. No.3(A)/98ACU-VIII, with the averments that Smt. Neera Yadav, IAS 1971 batch was Chairperson/ Chief Executive Officer (hereinafter referred to as CCEO) of New Okhla Industrial Development Authority (hereinafter referred to as Noida) w.e.f. 10.1.1994 to 8.11.1995 and she committed a crime under Section 13(1)(d) read with Section 13(2) PC Act by committing following acts of commission and omission in the matters of allotments, conversion and regularization of several residential/ commercial plots in her name in the name of her daughters amongst others in criminal conspiracy with the Officers of Noida that :-
(i) that Smt. Yadav had three unmarried daughters out of whom eldest Km. Sanskriti was studying abroad since 1991 and second one Km Suruchi had studied abroad from September 1996 to 1997; that Km Sanskriti was allotted shop no.9 in sector 28 and obtained possession through her sister Km Suruchi and upon her request, for issuance of functional certificate, it was immediately issued on the same date 6.6.1994 on the strength of ownership of which shop she applied for allotment of a residential plot under the scheme 1994 (ii) of Noida, was allotted plot no.B-73 in sector 44 of Noida and later on, got it converted to plot no.A-33 in Sector 44; that Km Suruchi another daughter of Smt. Neera Yadav was allotted shop no.74 in Sector 15 of Noida and after obtaining possession by her, the same was also declared to be functional on 28.5.1994 and on the strength of ownership of the shop, she applied for allotment of a plot under the scheme 1994 (iii) and was allotted plot no.B-88 area 450 sq. mts. in Sector 51, which was subsequently converted to plot no.A-32 adjoining to plot no.A-33 (allotted to her sister) in Sector 44 Noida; that the shop was allotted to Km Suruchi after closure of scheme of 1992 and no certificate was enclosed with the applications of any of the two daughters of appellant Smt. Neera Yadav about their shops being functional or being run by any of them.
(ii) that in first lottery under the scheme 1994 (i) appellant Smt. Neera Yadav was allotted plot no.B-002 area 300 sq. mts. in sector 32 and after one week on her request, for conversion of plot in developed sector, she was allotted plot no.26 area 450 sq. mts., in sector 14-A of Noida, and thereafter its area was enhanced by 112.5 sq. mts., which was lying between sector 26 and 27, against the Rules, as it could not have been allotted without due publication; that Sector 14-A was reserved only for the officers of Noida and could not have been allotted to any other private person,
(iii) that plot no.27-A in Sector 14-A, which was reserved for Government Guest House was allotted after conversion to Sri Rajiv Kumar, Deputy Chief Executive Officer, Noida (the appellant of Criminal Appeal No.4717 of 2012) in violation of Rules,
(iv) that several plots were allotted to different influential as well as political persons including brothers of Ex.Chief Minister Miss Mayawati, wrongly, illegally and against the rules and regulations of Noida, just to favour them and even without enclosing the requisite eligibility certificates by them, their applications were entertained and included in draw of lottery or otherwise and they were allotted plots out of turn.
3. That in this manner Smt. Neera Yadav in her capacity as CCEO of Noida, being a public servant in-conspiracy with some other officers of Noida as well as certain private persons, by use of corrupt and illegal means and by abusing her position, as public servant without protecting the public interests obtained valuable things and pecuniary advantages to herself, caused such benefits to others and caused loss to Noida and by her actions, the Government, has been cheated and the facts disclose commission of offences by her with other punishable under section 120-B read with section 420 IPC and section 13(1)(d) read with section 13 (2) of Prevention and Corruption Act, 1988 (hereinafter referred as "P.C. Act").
4. Upon completion of investigation charge sheet was submitted after obtaining requisite prosecution sanction under Section 19(1) of PC Act. The Special Judge CBI framed charges on 1.5.2007 and the CBI apart from producing the documentary evidence, produced as many as 39 witnesses in order to prove prosecution case. Thereafter the statement of appellant Smt. Neera Yadav was recorded under Section 313 Cr.P.C. and opportunity to produce defence evidence was given. After completion of evidence and hearing the learned counsel for the parties, the Special Judge CBI, Ghaziabad holding the appellant guilty of offences under Section 13(1)(d) read with Section 13(2) PC Act, passed impugned order of conviction, sentenced her with rigorous imprisonment for a period of 3 years with fine of Rs.1.00 lakh and in case of default in payment of fine with simple imprisonment for an additional period of four months. Feeling aggrieved the convict Smt. Neera Yadav has preferred this appeal.
5. The learned counsel for appellant contended that the impugned judgment and order is wrong and bad on facts and law; that prosecution sanction is void ab initio as has not been given by the competent authority; that it is wrong to say that application for allotment of plot was moved by appellant after the last date of closure of scheme and antedated cheque was enclosed with it; that it is proved from the evidence on record that the application was moved well within time of scheme and merely by enclosing a cheque in place of demand draft/pay order it may not be inferred that antedated application with antedated cheque was moved after closure of scheme; that in any case by enclosing cheque in place of demand draft no illegality was committed by appellant and in any case such an irregularity is insignificant; that daughters of appellant Km. Sanskriti and Km. Suruchi were not dependent on appellant and there is no illegality or irregularity in respect of allotment of shops or plots in their favour as well as conversion of their plots adjoining to each other in same Sector-44; that the daughters of appellant had sufficient source for payment of value of shops as well as plots allotted to them and being assessee they were paying income tax over their income; that no illegality or irregularity was ever committed by appellant in getting the shops or plots allotted in the name of her daughters in other sector, and in getting them converted with plots in Sector 44 or in getting the plot allotted in her name in Sector 32 and getting it converted with a larger plot in Sector 14-A; that the proposal for conversion of Plot No.26 in Sector 14-A to appellant was duly approved by OSD Smt. Stuti Kakkar and its area was further enhanced from 450 sq. mts to 562.5 sq. mts. in accordance with the Rules; that since conversion of plot was to be made in favour of appellant herself, who was head of Office being CCEO of Noida, the approval of conversion by OSD was sufficient as it could not have been approved by appellant herself; that the approval of conversion of appellant's plot no.002G in Sector 32 to Plot No.26 in Sector 14-A as well as the approval for enhancement of its area was not required to be obtained at the level of the Board, and for want of approval of Board such conversion and enhancement may not be held wrong and illegal; that it is wrong to say that the daughters of appellant were dependent on appellant and the shops and plots were wrongly and illegally got allotted by appellant in their names and were subsequently got converted as two adjoining plots in another developed sector; that it is wrong to say that the appellant got allotted three plots to the members of her family; that the appellant has not allotted plots to any other person who was not eligible for such allotments and the investigation agency failed to investigate into and file charge sheet in respect of the allotment of plots to such other persons; that the actions or inactions (omissions), if any, of appellant have taken place and in ordinary course of business of Noida being CCEO of Noida and for the irregularities, if any, the appellant may not be held to have committed any offence of criminal misconduct under Section 13(1)(d) punishable under Section 13(2) of PC Act; that the learned trial court did not frame charges against appellant correctly and conviction on the basis of defective charges is liable to be set aside; that the learned Special Judge acted wrongly in relying on the prosecution evidence despite material contradictions therein; that the learned Special Judge acted wrongly in holding the appellant guilty for the offence of criminal misconduct; that the prosecution has failed to prove the charges levelled against the appellant by any reliable and cogent evidence beyond reasonable doubt and to the hilt.
6. Per contra, learned counsel for the CBI Shri N.I. Zafri defending the impugned judgment and order submitted that the prosecution has proved the charges against appellant with reliable, independent and cogent evidence; that it is proved from the evidence on record that appellant Smt. Neera Yadav acted wrongly and illegally and by making misuse of her office of public servant as CCEO of Noida got allotted a plot No.B002G of 300 sq. mts. in Sector 32 in her favour upon application moved after closure of scheme, against the rules and regulations and thereafter got it converted to a larger plot no.26 of 450 sq. mts. in one of the most developed and prestigious sector 14-A of Noida at Delhi border and did not even stop here and Istly got it converted to a corner plot by making provision of 7.5 mts. wide road in East and IIndly got the area of plot further enhanced by 112.5 sq. mts to 562.50 sq. mts; that it is proved from the evidence on record that the application for allotment of plot was given by the appellant after closure of scheme on 15.3.1994 and the antedated application was moved with antedated cheque instead of mandatory requirement of 'demand draft' or 'pay order';
7. That apart from getting allotted a plot of 300 sq. mts. in sector 32 she not only doubled its area after wrongful & illegal conversion in sector 14-A against the rules but also got allotted two shops in the name of her two unmarried daughters Km. Sanskriti and Km. Suruchi who were fully dependent on her and after getting the shops allotted to them she got allotted two residential plots of 450 sq. mts. each in their names and each of the above two plots was converted as adjoining plots in more developed sector 44; that it is proved from the evidence on record that shops were allotted to Km. Sanskriti and Km. Suruchi just in order to make them eligible for the allotment of residential plots; that after getting the residential plots allotted, the two shops in the name of her two daughters which were falsely shown to be functional, were disposed of for higher value by the appellant; that it is proved from the evidence on record that at the time of allotment of above mentioned shops and residential plots in the names of Km. Sanskriti and Km. Suruchi, they were students and Km. Sanskriti was studying in U.K. and was not even living in India; that it is proved from the evidence on record that the application for allotment of shops in the name of Km. Sanskriti and Km. Suruchi were got moved by appellant wrongly which were incomplete in several respects, but the appellant making misuse of her office as public servant, CCEO of Noida got the shops allotted in their names and without any work, function or business having been done over the above allotted shops, those were declared functional under undue influence of appellant the then CCEO of Noida; that it is proved from the evidence on record that the payment of value of above shops or plots was not made by Km. Sanskriti and Km. Suruchi as they were students, had no source of income or funds to pay, and even the expenses of their studies were being born by their parents including the appellant; that it is proved from the evidence on record that the payment of value of above shops as well as residential plots were made by appellant and the above allotment of shops as well as residential plots in the name of daughters of appellant were in favour of appellant herself and the names of her daughters were Benami; that since Km. Sanskriti and Km. Suruchi were studying and were not having any vocation for gains they may not be having any income and the income tax returns, if any, submitted by them were got submitted by appellant with malafide intentions & ulterior motive, in order to conceal the income of appellant raised by her by foul means/unlawful gains obtained in the matter of allotment of plots, their conversion and enhancement of area by making misuse of her office as public servant;
8. That the contention of appellant that different plots were allotted by her to several persons viz., Sidharth Prasad, Kaushalya Devi, Chandana, Krishna Venkat Narayanan, A.K. Goswamy, Vikram Jain etc in different sectors who were family members of some Government officers having other plot in their name does not help the appellant in any manner rather it shows that the appellant being the CCEO of Noida was habitual of arbitrary working in the matter of wrongful & illegal allotments, as well as conversion of plots against the rules and regulations and the terms and conditions of various Plot Allotment Schemes with ulterior motive to oblige certain influential persons and political leaders and obtain undue pecuniary or other advantages as well as to cause undue loss to Noida; that further the argument of appellant that allotment and the conversion of plots of above or several other persons was done by Development Manager and the Senior Development Manager who were authorized for the same also does not help the appellant because the Senior Development Manager was not authorized to approve conversion and even if it was so the conversion of plots of above persons by Development Manager instead of Senior Development Manager is undisputedly wrong and illegal for which arbitrary and illegal working the appellant being CCEO of Noida is certainly liable and moreover there could have been no reason for obtaining approval of conversion of her plot no.B002G of 300 sq. mts. in Sector 32 to plot no.26 area 450 sq. mts. in Sector 14-A by OSD below the rank of and subordinate to, the appellant and the above conversion is wrong and illegal and in fact no conversion in accordance with law, because only CCEO Noida was authorized to approve conversion and no officer below the office & rank of CCEO was authorized to approve such conversion from other Sector; that it is also pertinent to mention that despite there being no application of the appellant for extension of area of her already converted larger plot no.26 merely upon putting note by a Subordinate Officer for making provision of very wide road in East and making provision of converting the plot of appellant in a corner plot with further extension of its area by 112.5 sq. mts., the appellant was not at all bound to approve above and had every authority to disapprove the same at least in respect of allotment of a plot of 112.5 sq. mtrs to her in the name of enhancement of area of her plot; that moving of above unwarranted proposal Ext. A-64 dated 28.5.1994 by Shri S.P. Gautam Chief Architect Planner and its approval by the appellant herself on 31.5.1994 shows that it was moved at her behest and directions to her subordinates; that the appellant has failed to show any justification of conversion of her plot no.26 in Sector 14-A from sector 32 by an officer, subordinate to her by which she has tried to show her bona fides in not approving the conversion in her favour by herself but the above bona fides disappeared when she approved the proposal Ext. A-64 for turning her plot as corner plot as well as for enhancement of area of her plot by 112.50 sq. mts. Herself, and thus allotted another adjacent plot of smallest category in her favour wrongly, illegally and dishonestly and thus obtained valuable thing and pecuniary advantage; that neither any officer subordinate to appellant nor the appellant herself was authorized to approve any conversion of plot from another sector in Sector 14-A in her favour nor she herself was entitled to or competent for giving approval for enhancement of area of her plot after execution of lease deed or even otherwise; that the appellant has failed to show that she acted bonafidely in good faith & in ordinary course of business and it is proved from the evidence on record that she misused her office as public servant & CCEO of Noida and obtained wrongful valuable things & pecuniary advantage causing wrongful loss to Noida and thus committed an offence of criminal misconduct within the provisions of sections 13(1)(d) punishable under Section 13 (2) of PC Act.
9. Having heard parties' counsel and perusal of record and before proceeding further the relevant features or clauses contained in brochure of Residential Plot Scheme 1994(I) in which appellant got allotted plot no.B002G in Sector 32 are being reproduced as under :-
CATEGORY - VI Regular employees of the Authority or regular Government/Public Sector Undertakings employees on deputation to New Okhla Industrial Development Authority.
ELIGIBILITY APPLICABLE TO ALL CATEGORIES OF APPLICANTS :
(i) The applicant of eligible categories should be competent to contract.
(ii) The applicant, his/her spouse and dependent children who do not own in full or in part on lease hold or free hold basis any residential plot/house/flat (excluding EWS/LIG/ DS-1/DS-II/TS-I/TS-II/Udaigiri-I/Udaigiri-IIhouses/flats allotted in the name of industrial unit/institution) and have not been allotted on hire purchase basis in NOIDA Complex. Husband, wife and their dependent children will not be separately eligible for allotment of plot and for this purpose they shall be treated as a single person and they can make only one application.
Eligible applicants are required to submit notarised affidavit on prescribed proforma as applicable, attached with the application form.
DOCUMENTS TO BE ATTACHED ALONGWITH APPLICATION FORM TO ESTABLISH THE ELIGIBILITY OF THE APPLICANT FOR ALLOTMENT :
(i) Applicant of category-I, II, III, IV shall submit the functional certificate issued by the Development Manager (Industries/Commercial/Institutional), NOIDA including status of the applicant in the firm on the prescribed proforma attached with the application form at Annexure-A (if the industry in functioning in NEPZ, the functional certificate issued by DC, NEPZ including status of the applicant shall be submitted as per Annexure-A).
Applicant of category-VI shall submit a certificate issued by Tehsildar, NOIDA on prescribed proforma annexed with the application form as Annexure-B.
I. CATEGORY OF PLOTS :
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Applicant will have to submit duly filled in application form for allotment of plot on the prescribed form given in the brochure alongwith all enclosures required for each category of applicants in the office of the Development Manager (R), Main Administrative Office, Sector-VI NOIDA, Ghaziabad. One application form may be used only for one category of plot as indicated in clause I & must be accompanied with "A/c payee Demand Draft/Pay order" of any scheduled bank in favour of New Okha Industrial Development Authority payable at NOIDA/Delhi/New Delhi. The registration no. to the applicant will be allotted by the office of the Development Manager (Res.) NOIDA. The registration of applicants shall commence on 1.3.94 and close on 7.3.94.
An eligible applicant may submit separate application (s) accompanies with Registration Money for other category(s) of plot in clause 1, but he/she will be entitled for allotment of only one plot under this scheme. If an applicant is successful in the draw of lots for more than one plot he/she will have to surrender rest of the plot(s) within the time prescribed by Chief Executive Office, NOIDA.
Incomplete application and applications without enclosures as mentioned above for allotment of specific plot shall not be registered. Therefore, the applicants are requested to submit complete application form in all respect alongwith the required enclosures and requisite amount of registration money for registration.
6. PREMIUM OF PLOT :
(i) The premium of the regular plot will be Rs.1200/- per sq. mtr. The premium of plots located at corner or facing park or Green belt facing major road (a road with width of 18 mtrs. And above) will be Rs.1215/- per sqm. In the event of the plot having located at corner & facing major road or corner & facing park the premium of plot will be Rs.1230/- per sqm.
(ii) Any enhancement in land compensation will also be recoverable from the allottees.
9. CHANGE IN THE ENTRIES IN APPLICATION FORM :
(i) Once an application is submitted, no amendments except change of address in the application form will be accepted without the prior permission in writing of the Chief Executive Officer or such officer as he may depute on his behalf. The decision on the application will be taken on the basis of information given in the application form at the time of submission of the application.
11. AREA OF PLOT :
Area of plot allotted or handed over may vary from the size of the plots advertised in the scheme and applied for. If the area of the plot indicated in the allotment letter issued by the Authority or actually handed over to the allottee is found to be in excess or less than the area applied for, a proportionate change in the amount of premium would be made. No dispute would be allowed to be raised by the allottee on the ground of variation in the size of the plot. He would also have no right to change of plot or refund of earnest money deposited by him on this account. If the variation between the plot and area applied for and the area allotted is more than 20% and the allottee is unwilling to accept the enhanced or reduced area, registration money deposited by the allottee will be refunded without interest if he applies for refund within 30 days from the date of issue of allotment letter.
10. Upon hearing learned counsel for the parties and perusal of record, I find that following facts are undisputed between the parties:-
(i) The appellant Smt. Neera Yadav, Senior I.A.S. Officer of 1971 Batch was posted as the Chairperson/Chief Executive Officer of Noida for a shorter period from 10.01.1994 to 08.11.1995.
(ii) Smt. Neera Yadav has three daughters, out of which youngest one was minor while the elder two daughters Km. Suruchi and Km. Sanskriti were major.
(iii) Km. Sanskriti was studying abroad since 1991 and was living outside India, in 1994-95 while Km. Suruchi was also studying.
(iv) As per prosecution case, the above two daughters of appellant Smt. Neera Yadav were dependent on their parents and were members of the family of appellant.
(v) Immediately after joining of appellant as CCEO, Noida on 10.01.1994 on an application dated 28.02.1994 shop no.74-C in sector -15 was allotted in the name of Km. Suruchi vide allotment letter Ext. A-15 dated 04.03.1994.
(vi) Similarly on an undated application on behalf of Km. Sanskriti (who was living abroad) shop no. 9 in sector 28 was allotted in her name vide allotment order Ext. A-11 dated 16.05.1994.
(vii) Vide Ext. A-13 (undated) an antedated application for allotment of a residential plot was moved by appellant Smt. Neera Yadav, after closure of allotment scheme 1994 (I), with ante dated cheque, which was defective on several counts.
(viii) On 08.04.1994 vide allotment order Ext. A-78 plot no. BOO2G area 300 sq. mts. in sector 32 was allotted to appellant Smt. Neera Yadav.
(ix) On 15.04.1994 application Ext. A-39 was moved by appellant Smt. Neera Yadav for conversion of her 300 sq. mts. Plot with a larger plot of 450 sq. mts. in some developed sector.
(x) On 02.05.1994 a proposal Ext. A-90 was presented by G.C. Tiwari for conversion of appellant's plot no. BOO2G, 300 sq. mts. in sector 32 with allotment of plot no. 26 of 450 sq. mts. In developed and prestigious sector 14-A on Delhi border.
(xi) On 06.05.1994 the above proposal, since was in respect of appellant Smt. Neera Yadav, the CCEO of Noida, was approved by an officer junior/subordinate to her or next senior most officer Smt. Stuti Kakkar, officer on special duty in Noida.
(xii) On 19.05.1994 lease deed Ext. A-45 was executed in favour of appellant and her husband in respect of plot no.26 area 450 sq. mts. with boundaries as mentioned in lease deed, as in North - Green Belt, South - 12 mts. wide road, East - 7.5 mts. wide road, West - plot no. 27.
(xiii) On 21.05.1994 vide Ext. A-46 possession was obtained by appellant Smt. Neera Yadav.
(xiv) On 28.05.1994 a proposal Ext. A-64 was made by Chief Architect Planner, Shri S.P. Gautam for making a provision of road to the East of plot no.26 and in between the official residence of CCEO, Greater Noida and plot no.26 of appellant in which 225 sq. mts. area was to be used and in order to save Noida from the loss caused by use of above area in road, a proposal for re-organisation of plots was also made in which the area of plot no.26 was proposed to be further enhanced by 112.5 sq. mts., making it to a larger plot of 562.5 sq. mts.
(xv) On 31.05.1994, the above proposal which was for conversion of plot of CCEO, Noida, the appellant in corner plot and for enhancement of its area was approved by appellant herself (while the approval of proposal Ext. A-90 for conversion of plot no.BOO2G from sector 32 to plot no.26 in sector 14-A was obtained from her Subordinate /Junior Officer on the pretext that the matter relates to appellant herself).
(xvi) On 03.06.1994, supplementary lease deed Ext. A-49 in respect of additional area of 112.5 sq. mts. adjoining West to plot no. 26 was executed.
(xvii) On 01.08.1994, through allotment letter Ext. A-55 a residential plot no. B-73 area 450 sq. mts. in sector 44 was allotted in the name of Km. Sanskriti.
(xviii) On 23.09.1994, through allotment letter Ext. A-50 a residential plot no. B-88 area 450 sq. mts. in sector 51 was allotted in the name of Km. Suruchi.
(xix) After conversion of above residential plots to plot no. A-32 and A-33 in the names of Km. Suruchi and Km. Sanskriti as adjoining plots in a developed sector 44 were allotted and on 26.12.1994 lease deeds Ext. A-53 and Ext. A-58 were executed in their names.
From above admitted facts, it is not disputed that out of the short tenure of posting of appellant Smt. Neera Yadav, in further shorter period of about 10 months from February 1994 to December 1994 two shops and two residential plots were allotted in the name of above mentioned daughters of appellant Smt. Neera Yadav and the above residential plots were converted to adjoining plots in developed sector while on a defective and antedated application, the residential plot of 300 sq. mts. (as applied) was allotted to appellant Smt. Neera Yadav which was converted to plot no. 26 of one and half times larger size 450 sq. mts. in most developed and prestigious sector 14-A on Delhi border and after execution of lease deed was it converted into a corner plot by making provision of extra wide road in its East and one more plot of 112.5 sq. mts. was allotted to appellant adjoining in West in the name of enhancement of area (for which was no application was ever moved by appellant) and making the plot just double to the area of initially allotted area of plot.
11. From the perusal of application form for residential plot under Residential Plot Scheme 1994 (I) of Noida, moved by the appellant Smt. Neera Yadav, exhibit A-37 on record, it is proved that the appellant moved an application no.648 for plot code 05 i.e., plot of 350 sq. mts. in size under category 'VI' meant for regular or on deputation employees of Noida which :-
(i) Did not bear duly attested passport size photograph of appellant on the application as against mandatory requirement of its due attestation by gazetted officer.
(ii) Name of husband/father of applicant was not filled;
(iii) No date of moving of application was mentioned anywhere on the application form.
(iv) The required disclosure of fact was not made to the effect that no other person of her family being her spouse, or daughters, own or, have obtained plots or, shops in any sector of Noida;
(v) Signatures of applicant were not attested by a gazetted officer as against mandatory requirement.
(vi) The required certificate from personal department of Noida, certifying that she was an employee of Noida, was not enclosed.
(vii) The required notarized affidavit on prescribe proforma was not enclosed.
(viii) The application which was mandatorily required to be accompanied with a/c payee crossed 'demand draft' or 'pay order' of registration amount did not accompany with any demand draft or pay order rather was accompanied by an antedated cheque.
12. As per the terms and conditions of brochure for allotment of residential plots under the scheme, mentioned above the application was mandatorily required to be complete in all respects such the duly attested signatures, photograph etc. and accompanied with all the enclosures viz., a/c payee demand draft/ pay order, requisite certificate of employment from personal department and notarized affidavit in prescribed proforma. In clause 3 of the brochure it has been clearly mentioned that an incomplete application or applications without enclosures shall not be registered. Therefore since the application of appellant was undisputedly incomplete on various counts as mentioned above, it could not have been registered or considered for allotment of plot and ought to have been rejected being not eligible for registration and legally no allotment of plot could have been made on such a defective application.
13. The evidence on record shows that the application form of appellant was not in the list of applications, which applications were sent to bank along with demand drafts and the entry of application form and cheque number of appellant were added subsequently by different person when hurriedly and surreptitiously the incomplete undated application of appellant, the then CCEO of Noida was moved with an antedated cheque. The fact of sending appellant's cheque for collection on 28.3.1994, after seven days of collection of amount of demand drafts in respect of other applications, is not disputed and addition of appellant's application in register also proves and confirms the correctness of prosecution case regarding moving of undated application with antedated cheque after closure of scheme. The arguments advanced on behalf of appellant that her cheque appears to have not been sent for collection till 28.3.1994 due to some mistake of official, has no force.
14. Undisputedly at the time of launching of scheme 1994 (I) for allotment of residential plots by Noida from 1.3.1994 to 15.3.1994 the appellant was CCEO of Noida. It is the order of the day that in all the government offices, officers seldom go to bank even for withdrawal of cash or for obtaining demand drafts etc. and this job is ordinarily performed by the subordinate officials of class III or class IV in the offices.
15. Hence had the appellant submitted application Ext. A-37 for allotment of plot on or before 15.3.1994 enclosing therewith cheque in place of draft, due to mistake, on receipt of her application form, the officer/official concerned would certainly have appeared before her with folded hands and a request that she may kindly be pleased to issue another cheque in favour of banker so that he (the employee) may obtain an account payee 'demand draft' or 'pay order' during the course of day on her behalf, (as they used to do on obtaining 'demand draft' on behalf of appellant's daughters on receipt of cash) for enclosing with application form, as per mandatory conditions under the Scheme so as to save the application of his boss and head of department against risk of rejection on account of this defect. But circumstances speak that since the application was moved antedated after closure of scheme, and antedated 'demand draft' or 'pay order' could not have been obtained so it had to be submitted with antedated cheque with an understanding that who can dare to reject her application or say 'WHO CAN DARE TO BELL THE CAT'.
16. The argument of appellant that there was no need for her to move antedated application with antedated cheque because being CCEO of Noida, she could have further extended the period of scheme has also been made to be rejected because the period of scheme was upto 7.3.1994 & was extended to 15.3.1994 and could not have been extended further after expiry of 15.3.1994, no further extension could have been made & she had no other option except to enclosed antedated with her undated application for allotment.
17. Undisputedly the appellant being the then CCEO of Noida succeeded in getting a plot allotted on her defective and antedate application, which could not have been registered and included for consideration in draw of lots.
18. It is also noteworthy that under the scheme in which the appellant applied, was allotted a plot of 300 sq. mts., the alleged conversion policy she could not have got a plot larger in area than the plot originally allotted to her. But since she was CCEO of Noida and the business of Noida was being conducted by her wrongly, illegally and arbitrarily as per her wishes and choices, so inspite of her not being eligible for allotment of a plot in Scheme (I) of 1994, on her antedated and defective application, Istly she got it allotted a plot of 300 sq. mts, IIndly also got it converted with a 50% larger plot no.26 of 450 sq. mts. in most developed and prestigious Sector 14-A of Noida on Delhi border, with the approval by instead by Board, by her subordinate/junior Smt. Stuti Kakkar, OSD, who was not competent to approve the conversion, IIIrdly again converted it in a corner plot by getting it moved a proposal Ext. A-64 on 28.5.1994 by Chief Architect Planner Shri S.P. Gautam for making provision of a 7.5 mts. wide road between her plot no.26 and the residence of CCEO of Greater Noida IVthly got allotted another plot of 112.5 sq. mts. (out of adjoining plot) in the name of unwarranted and unprayed enhancement of area of her plot by another 37.5% of original area, and Vthly by giving approval to Ext. A-64, herself, and obtained an unparallel giant sized plot of 562.50 sq. mts. in Sector 14-A on Delhi Border getting the area of originally allotted plot enhanced upto 187.50% or say just double.
19. Clause 11 mentioned in brochure issued for allotment of residential plots Scheme 1994 (I) states that the area of a plot allotted or handed over may vary from the size of the plots advertised in the scheme and applied for, and a marginal increase or decrease in area upto a maximum of 20% on either side may be found and to meet such an eventuality of any difference of area on the spot, no unnecessary dispute may be raised and in case of any such increase or decrease the value of plot allotted will be increased or decreased proportionately. However, in case of increase or decrease in the area of plot allotted is more than 20%, the allottee may refuse to accept allotment on the ground of such variation and will be entitled to refund of his registration money and the authority may not forfeit any part of it, which the authority can, in case of refusal to accept allotment by allottee without any such reason.
From above clause, I find that the provisions for increase or decrease have been made to avoid any dispute in case of any marginal increase or decrease of area as it a very small area is there on the spot which is less than 20% of area allotted, the same may also be allotted to the allottee on payment of its proportionate value and the provisions may not be continued to enhance the area of plot initially to any area more than 20% and so the enhancement of 50% area in the name of conversion and further 37.5% by way of enhancement, enlarging the plot to 187.5% is absolutely wrong, illegal and arbitrary.
20. In view of above facts, it is clear that any increase over and above the maximum limit of 20%, as mentioned in clause 11 of brochure mentioned above will fall in the category of fresh allotment of plot, which is prohibited in the eligibility clause itself. In any case, in the alleged conversion policy or anywhere else, there is no provision for enhancement of area of a plot and in any case after execution of lease deed the question of enhancement of area of a plot does not arise, and certainly falls within the category of fresh allotment of plot.
21. Article 13 of the Constitution of India provides that all laws in force immediately before commencement of the constitution in so far as they are inconsistent with the provisions of part IIIrd relating to "Fundamental Rights", shall to the extent of such inconsistency be void and the State shall not make any law which takes away or abridges the rights conferred by above part IIIrd and any law made in contravention of this clause shall to the extent of the contravention be void. Article 13(3), further defines that "law includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India, the force of law.
22. Article 14 of the Constitution of India provides right to equality and states that, "the State shall not deny to any person 'equality before the law' or the equal protection of the laws, within the territory of India. In view of above provision, our constitution provides equity and equality before law to every citizen of India and any law which deprives any citizen or class of citizen from his equal rights that will have no legal sanctity and will remain void ab-initio without its being challenged or declared to be void.
23. In view of above provisions contained in Constitution of India, the provisions if any made by Noida with regard to conversion policy for converting the plot from one sector to another or for reserving any sector or its part for a particular section of public or officers in exclusion of general public is void ab-initio and may not be considered to be legal or in-confirmity with law. Each and every plot is required to be open for allotment to general public through due advertisement and any policy for allotment in contravention of the general rule stands wrong and illegal. Similarly, the alleged policy permitting the allotment of a plot to a person in one sector and converting it to another developed sector is also wrong and illegal as it violates fundamental rights and provides undue advantage to the allottee enabling him to get more valuable plot than which was allotted to him and at the same time deprives the general public of the opportunity of getting plots allotted in such developed sectors. It may not be disputed that development authorities do adopt such a practice of not allotting the plots in developed sectors to general public by draw of lots and they get the allotment of plots in remote or undeveloped sectors and the plots in developed and prestigious sectors are allotted to influential persons by way of conversion.
24. As per general rule and according to ordinary prudence or even under any commercial offer for exchange, where the property or thing is offered to be given and taken in exchange, the property, thing, or product offered to person individual by the authority or company, always carries lessor area or value in comparison of property, thing or product, to be received by authority or company from the individual and at the most both may be equal in all respect. Under any imagination even in case of any commercial advertisement for promoting its product no company even in order to compete with rival company in market offers or may offer a product of equal value what to say of higher value to be given then to be received from the customer/consumer.
25. It is not disputed that the appellant being CCEO of Noida was entitled for allotment of a plot in sector 14-A by conversion. Under the alleged conversion policy, the conversion scheme provides that only cancelled or surrendered plots can be given in conversion and since plot no.26 in sector 14-A was neither a cancelled plot nor a surrendered plot, so it could not have been allotted to her by way of conversion. The learned counsel for appellant submits that though as per rules, for conversion of plots in other sectors the plot to be given by way of conversion was required to be a cancelled or surrendered plot, but this rule was not applicable for conversion of plot in Sector 14-A. Be that it may, but if such rules are framed for giving benefit to one section of VIPs or influential persons, as against the interests of general public is unconstitutional and may not be considered to be in conformity with law being against the spirits of Articles 13 and 14 in Chapter II of Constitution of India.
26. So, even in case of conversion of plot despite framing of rules and passing of an illegal & constitutional policy to favour oneself or persons of one's choice, the development authority may not be correct to give a plot of 450 sq. mts. in most developed and prestigious sector on Delhi boarder in lieu of exchange or by way of conversion accepting a small plot of 300 sq. mts. in undeveloped sector, from allottee. Therefore, the conversion of plot no. B002G of 300 sq. mts. From Sector 32, with plot no.26 of 450sq. Mts. In Sector 14-A, is absolutely wrong, illegal and arbitrary and has been dishonestly obtained by appellant in pre-planned manner by making misuse of her office as public servant being CCEO of Noida.
27. The learned counsel for appellant has failed to show any provision for enhancement of area in the conversion scheme so passed by Noida or otherwise which permits conversion of a small plot with larger plot in more developed sector. In absence of any such provision in conversion scheme or other even in view of general rule of ordinary prudence, the allotment of plot no.26 of 450 sq. mts. in Sector 14-A to appellant in lieu of plot no.B002G in Sector 32, by way of conversion is absolutely wrong and illegal.
28. In view of above, the increase of area of appellant's plot by way of conversion of her allotted plot of 300 sq. mts. in sector 32 to a plot of 450 sq. mts. in sector 14-A with 50% increase of area in the light of her application dated 15.4.1994 for conversion in a larger plot is wholly unjustified, wrong and illegal and may not be considered valid for the reason that appellant was CCEO of Noida. Further, there can be no justification for presenting a proposal by Shri S.P. Gautam, the Chief Architect Planner for unnecessarily making provision of a 7.5 mts. extra wide road between residence of CCEO of Greater Noida and plot no.26 allotted to appellant (by way of conversion) and for allotment of another adjoining plot of 112.5 sq. mts. in the name enhancement of area of appellant's plot. It is noteworthy that the above proposal dated 28.5.1994 Ext. A-64 was approved by the appellant herself on 31.5.1994 without any if and but which itself speaks the story behind moving of such proposal at the direction of appellant herself. It is also surprising that the appellant who got the allotment of plot no.26 in her favour by way of conversion upon approval of her subordinate officer OSD, Noida Smt. Stuti Kakkar, approved the above proposal for enhancement of area of her plot herself on 31.5.1994 without caring to obtain its approval from above Smt. Stuti Kakkar, which shows that OSD Noida Smt. Stuti Kakkar was not competent to approve the conversion of plot no.B002G in Sector 32 to plot no.27 in Sector 14-A on 6.5.1994.
29. The evidence on record indicates that the above road between the official residence of CCEO of Greater Noida and personal plot of appellant the then CCEO of Noida was proposed at the instance of appellant after execution of lease deed dated 19.5.1994 of plot in her favour for satisfying her desire of having two side open giant plot for construction of an unparallel palatial house on Delhi border.
30. It is also noteworthy that just after nine days of execution of lease deed of largest plot no.26 in favour of appellant on 19.5.1994, the above proposal for making provision of a 7.5 mts. wide road between the official residence of CCEO of Greater Noida and plot No.26 of appellant as well as for enhancement of area of plot no.26 was moved on 28.5.1994 by Shri S.P. Gautam, Chief Architect Planner, with further proposal for re-organization of plots in view of loss of area of 225 sq. mts. in the proposed road and so proposing enhancement of area of plot no.26 of appellant by 112.50 sq. mts. to 562.50 sq. mts. is self contradictory to the cause given for reorganization of plots and itself speaks the truth behind moving the above unwarranted proposal dated 28.5.1994 Ext. A-64 (without there any application of appellant for enhancement of area or for requirement of any road) which was approved by appellant herself on 31.5.1994. It is further surprising that though Noida suffered a loss of 225 sq. mts. area, in the proposed road, a proposal for further enhancement of 112.5 sq. mts. area in plot no.26, was approved by appellant herself without any if and but despite of her being possessed with powers to disapprove the above proposal for such unwarranted and unreasonably wide road as well as enhancement of area without even raising any query or objections and accorded approval herself which she could have refused atleast partly in respect of enhancement of area of her own plot.
31. Apart from the fact, that 7.5 mts. wide road to the East of plot no.26 of appellant was totally unwarranted, and there could be no reason for enhancement of area of her plot by another 37.5% of the area initially allotted.
32. The lease deed Ext. A-45 in respect of plot no.26 area 450 sq. mts. was executed in favour of appellant on 19.5.1994 in which boundaries have been given as in East 7.5 mts. wide road, West Plot No.27, North Green Belt and South 12 mts. wide road. Undisputedly the above proposal Ext. A-64 was made by Shri S P Gautam after 9 days of execution of lease deed on 28.5.1994 and was approved by appellant after 12 days of lease deed, on 31.5.1994 but surprisingly enough the Eastern boundary of appellant's plot no.26 as mentioned in lease deed dated 19.5.1994, executed 9 days earlier is 7.5 mts. wide road in East, and the above facts further strengthens the story of pre-planned dishonesty as well as criminal misconduct committed by the appellant.
33. It is fully proved from the evidence on record that by approving intervening road between the two plots, the appellant not only converted her plot into a corner plot having 2 side opening on very wide roads and very wide green belt on the other side, but also shifted her plot towards West by 7.5 mts. and further extended it towards West by another 3.75 sq. mts. by enhancing area of her plot by 112.5 sq. mts., and thus the area of 225 sq. mts. + 112.50 sq. mts. total 337.50 sq. mts. of Noida was misutilised by her causing loss to Noida and undue gains to herself. It was pointed out by learned counsel for CBI that disputedly the appellant has been convicted for criminal misconduct in furtherance of criminal conspiracy with her Deputy CEO Rajiv Kumar, in the matter of allotment of adjoining plot no.27 to him and wrongly enhancing its area and making disappearance of an unnumbered plot of 529.35 sq. mts., causing great loss to Noida in Special Trial No.19 of 2002.
34. As per terms and conditions of allotment Scheme 1994 (1) mentioned in brochure, no person or his family member can get allotment of more than one plot. The alleged enhancement of area of plot no.26 of appellant on 31.5.1994 (after execution of lease deed on 19.5.1994 and delivery of possession on 1.6.1994) is absolutely wrong and illegal and amounts to allotment of a small adjoining plot illegally in contravention of rules and regulations.
35. According to the rules of Noida an allottee is required to make deposit of certain percentage of value of plot as premium cost for the corner plot and in the case of appellant after enhancement of its area, the amount of premium cost for entire 562.5 sq. mts. was required to be deposited by appellant in Noida and by not depositing the amount of premium cost after converting it in two side open corner plot, in respect of 450 sq. mts. or in respect of entire 562.5 sq. mts. (after enhancement) the appellant by making misuse of her office has obtained undue pecuniary advantage and caused undue loss to the authority and has committed criminal misconduct within the meaning of section 13(1)(d) read with section 13(2) of Prevention of Corruption Act.
36. As far as the allotment of shops and residential plots to two daughters of appellant is concerned, it is admitted and also proved from the evidence on record that the two daughters of appellant were studying and were neither working for gains nor had any source of income and out of two daughters, Km. Sanskriti was living and getting education in U.K. and Km. Suruchi in India and obviously in absence of any evidence to the contrary their expenses of studies as well as of livelihood were being borne by their parents, the appellant and her husband. It is proved from the evidence on record that requisite registration money for allotment of shops was not paid by them rather was paid from the joint account of their parents, the appellant and her husband, who were maintaining several accounts joint with their daughters as also in the name of HUF. The evidence on record shows that Km. Sanskriti and Km. Suruchi did not carry any business over any of the two shops allotted to them at any point of time and even in absence of any business having been carried over, the two shops were declared functional at the behest of appellant so as to make them eligible for allotment of residential plots and after getting it allotted two shops in the name of her dependent daughters and from the money provided by her she also got allotted 2 residential plots in their names in different sectors and got them converted as adjoining plots in more valuable & developed Sector No.44, but misuse of her office as public servant as CCEO of Noida.
37. It is also proved from the evidence on record that after allotment of residential plots, the shops, (which were got allotted in the name of Km. Sanskriti and Km. Suruchi to make them eligible for allotment of residential plots), were disposed of/sold out though the status as to disposal of residential plots allotted in the name of daughters of appellants is not on record. The argument of learned counsel for appellant that on fulfillment of certain conditions like supply of electricity connection etc, a shop could have been declared functional, and that Km. Suruchi had obtained a registration under 'The Shops Act' for business of 'Decorators and Florescent' have no relevance and carries no weight in view of facts and circumstances of the case and material on record, clearly shows that functional certificates were issued on the basis of paper transactions regarding registration under 'The Shops Act' and electrification of shops, hurriedly for satisfying the directions and desires of the appellant, for making them eligible for allotment of residential plots.
38. It is also admitted as well as proved that shop so allotted in the name of Km. Sanskriti, was sold by her to Meenakshi Vijay on 20.10.1995 vide paper no.14/A-4 for valuable consideration disclosing that she has obtained advantage of allotment of residential plot.
39. It is pertinent to mention that as per rules if certain plots or shops are left for allotment under the scheme launched, due to non-receipt of sufficient valid applications within the prescribed period under a scheme or otherwise, the development authority uses to bring another scheme subsequently, advertising remaining plots/shops in different sectors for members of general public at new and enhanced rates, prevalent at the date of advertisement of new allotment scheme, and such left over shop or plot may not be allotted to any person, of the choice of CCEO Noida on application moved after closure of allotment scheme or otherwise by way of conversion from one sector to another.
40. It is the case of prosecution that plot to appellant and shop to her daughter Km. Sanskriti were allotted on applications moved after closure of the scheme. Had the plot/shop not been allotted to the appellant under Scheme 1994 (I) and her daughter Km. Sanskriti under Scheme 1994 (II) on their application forms submitted after closure of the scheme, as mentioned above, those shops and plots would have been included for allotment under next new scheme, and would have fetched higher value benefiting Noida. So also for ascertaining allotment of shop in the name of km. Sanskriti her daughter, and plot no. B002G in Sector 32 in her name the appellant has obtained valuable things or pecuniary advantage by illegally obtaining the property at lower rate by moving applications after closure of scheme and deprived Noida of value of shop and plot by new rates, causing wrongful pecuniary loss to Noida and thus the appellant has committed criminal misconduct in getting above allotment made in favour of herself & her daughter, obtaining valuable things and pecuniary gains and causing undue loss to the Noida.
41. The contention of appellant that her daughters Km. Sanskriti and Km. Suruchi had inherited certain properties worth Rs.3.00 lacs or odd and some gold from their grand mother 'Nani', and that they were filing income tax returns and were income tax assessees, has no force, as no admissible evidence worth reliance, to above effect has been produced on record by the appellant. The photo copies of income tax returns of Km. Sanskriti and Km. Suruchi filed by appellant in defence evidence in Court below are neither certified copies nor admitted to prosecution and are not admissible in evidence. It is noteworthy that according to evidence on record the value of plots allotted to Km. Sanskriti and Km. Suruchi was Rs.7,31,875/- and Rs.8,89,333/- respectively total Rs.16,21,208/-, (apart from the value of shops around Rs.4.00 lacs to Rs.5.00 lacs). The photocopies of their income tax returns, which are inadmissible in evidence and appears to have been filed subsequent to receipt of some assets/valuable securities by them under will of their Nani and show a very meagre or nominal annual income between Rs.25,000 to Rs.40,000 of each daughter including income from interest on FDRs & securities. From above papers the approximate value of total assets of Km. Sanskriti comes around Rs.4.00 lacs to Rs.5.00 lacs each. From above alleged income or asset, particularly when no part of the assets is alleged to have been disposed of, and no F.D.R. etc. is alleged to have been encashed, so as to raise funds for purchasing the shops and plots by them, it is clear that the daughters of appellant who were students and dependent on appellant, had no source to purchase properties worth Rs.10.00 lacs each in their names.
42. It is proved from the evidence on record that the payments in regards to registration money or value of shops and residential plots in the name of Km. Sanskriti and Km. Suruchi were not made by them as they were not capable of making such payments and that the properties were obtained in their names by the funds provided by appellant and her husband and either bank drafts obtained by cash provided by appellant or obtained from the bank account of Km. Sanskriti or Km. Suruchi, upon making deposit of requisite amount by appellant in their account for obtaining demand drafts out of the amount so deposited. The findings of trial court in above respect upon a detailed analysis of evidence of prosecution witness at page 309-312 of paper book could not be assailed on behalf of the appellant.
43. The contention that the payments were made from an account of Hindu undivided family in the name of appellant and others, also carries no force, as there is no evidence on record to show that there was any Hindu Undivided family of appellant or her husband and their daughters were also members of such HUF. It is also noteworthy that by amending Act No.39 of 2005 w.e.f. 9.9.2005 by way of substitution of Section 6 of Hindu Succession Act the daughter of a coparcener has been given right to become coparcener with same rights in coparcenary property as it she had been a son. Prior to that in the relevant period of 1994-95 daughters could not have been a coparcener to Hindu Undivided Family. In absence of any evidence on record neither Km. Sanskriti and Km. Suruchi may be treated to be the members of such Hindu undivided family nor the payment of value of properties in their names, from above HUF account may be treated to be payment by any of them.
44. Even if the contention of appellant, that her daughters inherited valuable properties though will executed by their Nani is accepted, it does neither help the appellant nor adversely affects prosecution case, in absence of any evidence to show that the payments of the value of shops and plots were made by the two daughters from their own sources and funds raised from savings of alleged income or from disposal of the assets inherited by them.
45. The appellant could not dare to produce any of her two daughters Km. Sanskriti & Km. Suruchi who could have deposed on oath about their alleged income or financial status as well as capabilities to purchase the above properties. The proceedings of borrowing Rs.4.00 lacs each by above two daughters on 9.6.1995 from M/s. N.P. Mutual Benefits Ltd., Bareilly of Navin Khandelwal, PW-20 allegedly provided by him on mere telephonic call made by Shri M.S. Yadav, father of Km. Sanskriti & Km. Suruchi (husband of appellant) and the repayment of above loan after about one year on 5.10.1996, as deposed by PW-20 Navin Khandelwal also does not help the appellant. Navin Khandelwal PW-20 has deposed that he had disbursed the loan on account of faith in their father and the appellant has not cross examined the above witness. The above facts show that subsequent transaction of loan is only a paper transaction. There is nothing on record to show that Km. Sanskriti & Km. Suruchi who were students and whose expenses of livelihood and education were being borne by appellant had sufficient funds to purchase the shops and plots, or purchased the above mentioned shops or plots from their own funds. It is also proved that the shops and plots were purchased by appellant in their names, from the funds provided by her.
46. In reply to the arguments advanced on behalf of the appellant, this argument of learned counsel for CBI may not be out of context wherein he submitted that dishonest persons often maintain various accounts and get the income tax returns filed by non-earning members of their families by showing false income from fake sources, in order to get their own unaccounted income, (raised by sources other than the known sources of income) adjusted in property purchased in the names of such members of their families.
47. I also find force in the arguments of learned counsel for CBI that any application for allotment of shops/plots if defective for want of signatures, date or enclosures may not be registered or entertained for draw of lots in the matter of allotment of plots or shops and has to be rejected as per rules. In the cases of members from general public who do not happen to be as influential as the appellant, the similar applications, which were allegedly moved by Km. Sanskriti or the appellant herself after closure of scheme and were undisputedly defective being not in accordance with rules and terms and conditions of brochure could not have been registered or entertained for allotment or for draw of lots and ought to have been rejected.
48. Similarly in case of the application for conversion of plot in another sector by a person from general public, it would have been dealt with strict hand and the application for enhancement of area or for converting the plot into corner plot it would have been rejected outright or by raising several technicalities, and even in any case of finding of any excess area in plot, or in case of its turning to be a corner plot with two side opening/road, the allottee would have been asked to pay heavy amount of premium price before execution of lease deed.
49. The arguments of appellant that correct charges were not framed by the trial court and so the appellant may not be convicted and the conviction is liable to be set aside has no force in view of the discussions made above and in view of the provisions of section 464 Cr.P.C.
50. The appellant has been a senior IAS Officer and bureaucrat and has been fully aware of the charges levelled against her since from the stage, when in furtherance of order of Hon'ble the Apex Court, FIR was lodged against her for the offences committed by her. By the alleged defects if any in the charges framed the appellant is not likely to suffer any loss and taking undue advantage of technicalities she may not be acquitted.
51. The arguments of the learned counsel for the appellant that this is not a case of illegalities rather is a case of minor irregularities only and since similar irregularities were committed in cases of other allotments made by her in favour of Sidharth Prasad, Kaushalya Devi, Chandana, Krishna Venkat Narayanan, A.K. Goswamy, Vikram Jain, Subhash etc. who have not been prosecuted, she may also not be held guilty and is entitled for acquittal, also has no force and does not help the appellant rather goes against her and supports the contention of prosecution that the appellant was habitual of arbitrary working and making misuse of her office as public servant CCEO Noida and being habitual of working wrongly, illegally and arbitrarily, had obtained undue benefits/gains by obliging the influential persons and political leaders with ulterior motive to obtain their favour or otherwise.
52. Similarly, the arguments that for the offences for which the appellant has been convicted in this case as well as in Special Trial No.19 of 2002 with her Dy. C.E.O. Mr. Rajiv Kumar, the other officers of Noida viz, Smt. Rekha Devyanai, Shri S.P. Gautam, Shri Tribhuvan Singh were not even prosecuted despite there presenting various proposals and so she is also entitled for acquittal, has also no force and it is settled law that even if some wrong doers is left to be prosecuted, the real culprit may not be acquitted.
53. The argument advanced on behalf of appellants that they have been exonerated in departmental inquiries initiated against them also, has no force because the result in departmental inquiries has no effect on the Court proceedings in criminal matters or otherwise and possibility of their exoneration having been managed by appellants through influence of political leaders [who were obliged by benefiting them through allotment of plots in their favour (as mentioned in F.I.R.) by flouting rules and regulations], may not be ruled out.
54. In above respect, the court below has rightly pointed out that the departmental inquiry report was submitted during the tenure of the then Chief Minister Kumari Mayawati and in view of the reference made to specific averments in FIR as well as in the report of justice Murtaza Hussain dated 8.12.1997 submitted by him in the Noida, Inquiry Commission constituted by U.P. State vide notification No.86/N/96 dated 25.1.1997, that in exercise of powers of her office as public servant appellant Smt. Neera Yadav as CCEO of Noida appointed two brothers of Kumari Mayawati (Chief Minister) in Noida, as carpenters and LDC and also made allotment of two plots in a very developed and prestigious sector 44 in the names of brothers of Ex. Chief Minister, causing undue advantage to them and obliging Chief Minister by fulfilling her wishes of obtaining plots for her brothers, and causing huge undue loss to Noida, the exonerated of appellants in departmental inquiry is of no consequence.
55. In cases based on charges of corruption, except in trap cases where accused is caught red handed at the time of accepting bribe, oftenly direct evidence may not be available and on the basis of circumstantial evidence inference has to be drawn in favour of or against the prosecution as the case may be. It is settled principle of law that it is only men who may speak lie and circumstances never speak lie.
56. In the case of Hema Vs. State Through Inspector of Police, Madras (2013) 10 SCC 192 relying on the principles of law laid down in 2012 9 SCC 532 in the case of Gajoo Vs. State of Uttarakhand, the Apex Court has held that "certain defects in investigation unless affects the very root of the prosecution case and is prejudicial to the accused, should not be an aspect of material consideration by the Court. Since, the Court has adverted to all the earlier decisions with" and other case laws, it was held that "it is clear that merely because of some defects in the investigation, lapse on the part of the I.O., it cannot be a ground for acquittal. Further, even if there had been negligence on the part of the investigating agency or omissions etc., it is the obligation on the part of the court to scrutinize the prosecution evidence de hors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth."
57. The impugned judgment and order of conviction has also been assailed for want of valid prosecution sanction. The learned counsel for the appellants argued that the prosecution sanction has been accorded without due application of mind by the competent authority and the sanction order issued by Under Secretary to Government of India does not make a valid prosecution sanction.
58. The object of enactment behind framing of statutory provision for prior prosecution sanction in the matters of prosecution of public servants in respect of their official acts is that they should not be harassed unnecessarily on flimsy grounds for settlement of personal scores and the purpose behind the provision is not to shield the real culprits. So in matters of grant of prosecution sanction, the competent authority concerned is required to look into the evidence collected against the accused and examine the prima facie correctness of the allegations made or evidence collected and consider that in case the correctness of allegations is proved to be as such, the accused may be held guilty of the offence of criminal misconduct within the provisions of sections 13 (1)(d) read with section 13(2) of P.C. Act and section 120-B Cr.P.C., as in the case in hand. At the time of considering the matter for according prosecution sanction, the authority concerned is not required to conduct a trial, examine the witnesses and pass a detailed judgment holding the accused to be guilty or innocent and it is suffice for it to see as to whether the prima facie strong evidence is available against the accused, which if remains as such upon trial, will be sufficient to hold him guilty. It is also pertinent to mention that while section 19 (1) of P.C. Act provides the necessity of previous prosecution sanction, section 19 (3) provides that no finding, sentence or order passed by Special judge shall be reversed or altered by a court in appeal on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section 1, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.
59. Upon careful consideration the entire evidence of lower court record as well as of the record of departmental files relating to sanction to prosecute from the department of personal and training, North Block New Delhi and the records of files relating to various other officers/officials (other than appellant) from personal department Noida, shops allotment files from commercial department and plot allotment files from residential department of Noida relating to allotment of shops to other persons (other than appellant and other daughters) summoned on the application of appellant Smt. Neera Yadav vide order dated 21.11.2014 in this appeal. I find that the lower court has very clearly and elaboratory analyzed the evidence on record in right perspective has also taken into consideration the gesture and demeanor of the witnesses, and has committed no mistake in coming to the findings that the prosecution has succeeded in bringing the charges home as against the appellants and that they in furtherance of criminal conspiracy between them have committed an offence of criminal misconduct and are punishable under section 13(1)(d) read with section 13(2) of P.C. Act.
60. The arguments regarding prosecution sanction against appellants being defective or invalid for having not been granted by competent authority upon due application of mind, have been categorically dealt with by the trial court in its judgment at page 279 to 286 of the paper book, and in detailed analysis of factual and legal position by trial court, no illegality or incorrectness, could be pointed out by or on behalf of any of the appellants.
61. In the case of V. Venkata Subbarao Vs. State represented by Inspector of Police, A.P. (2007) 3 SCC (Cri) 175 relied by appellant in a matter of trap case having been conducted within 40 minutes of making of demand of Rs.5000/- as illegal gratifications and reducing the same to Rs.2000/-, the prosecution evidence was found unreliable and contradictory and it was found proved from the evidence on record that the relevant documents showing involvement of Mandal Revenue Officer were not produced before the sanctioning authority, the appeal was allowed and conviction was set aside.
62. In the case of State of Karnataka Vs. Ameerjan (2008) 1 SCC (Cri) 130 relied by appellant it has been held by the Apex Court that the sanctioning authority is the best person to judge as to whether public servant concerned should get the protection under the Act by refusing to accord sanction for his prosecution or not and indisputably application of mind on the part of sanctioning authority is imperative.
63. In the case of Dinesh Kumar Vs. Chairman Airport Authority India and another (2012) SCC (Cri) 509 relied by appellant also similar view has been expressed, that grant of prosecution sanction is not intended to be, nor is an empty formality but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecution and is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty.
64. In the case of CBI Vs. Ashok Kumar Aggarwal AIR 2014 SC 827 relied by appellant it was held that for grant of prosecution case, the sanctioning authority has to do complete and conscious scrutiny of whole records placed before it and the sanction order should also show that the authority has considered all the relevant facts and applied its mind and prosecution is under obligation to place entire record before the sanctioning authority and satisfy the court that authority has applied its mind.
65. In the case of C.K. Jaffer Sharief Vs. State (through CBI)(2013) 2 SCC (Cri) 482 relied by appellant wherein the then Union Railway Minister C.K. Jaffer Sharief, who was also ex-officio head of two public sector undertakings RITES and IRCON, was accompanied by four persons during his trip to London in connection with his medical treatment and observing that the Minister had to decide the number and identify of the officials who should accompany him to London, it was held that merely for violation of some rules or norms it will not be correct to say that above act was done with a dishonest intention to obtain an undue pecuniary advantage and that there can be no crime without a guilty mind as well as in absence of any physical or mental element to show dishonest intent i.e. in absence of 'actus reus' and 'mens rea', the proceedings are liable to be quashed.
The facts of above cases relied by appellant are clearly distinguishable from the facts of this case and are not applicable to the facts of the case, and do not support the appellant.
66. In (2013) 8 SCC 119 State of Maharashtra Through C.B.I. Vs. Mahesh G. Jain, the principles with regard to prosecution sanction have been culled out in para 13 of the judgment as follows:-
"(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
(b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.
(d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
(g) The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity."
67. In the case of State of Maharashtra and others Vs. Ishwar Piraji Kalpatri and others (1996) 1 SCC 542, in a matter of disproportionate assets when validity of prosecution sanction was questioned for not giving opportunity of being heard to the accused under principles of natural justice and High Court quashed the proceedings under section 482 Cr.P.C. holding that "in the absence of sanctioning authority recording and holding that the accused could not satisfactorily account for disproportionate assets no sanction could even have been granted "
68. In appeal, the Apex Court setting aside the above order held that the order of prosecution sanction is an administrative act where question of giving opportunity of being heard at that stage does not arise and since in the preamble of the said order, it is categorically stated that "Another reason as given by High Court for quashing the sanction was that the order of sanction was signed by the Additional Chief Secretary to the Government of Maharashtra but there is nothing in this order to indicate as to whether the signatory or any other officer on his part was the one who had personally scrutinized the file and arrived at a subjective satisfaction that is a legal pre-requisite. "We do not find any warrant, in law, which requires a statement being made, while according sanction, that the officer signing the order had personally scrutinized the file and had arrived at the required satisfaction. In the preamble of the said order, it is categorically stated "and whereas the Government of Maharashtra having fully examined the material before it and considering all the facts and circumstances disclosed herein, is satisfied that there is a prima facie case made out against the accused person and that it is necessary in the interest of justice that accused person should be prosecuted in the Court of competent jurisdiction for the said offences......."
which prima facie shows that there has been application of mind and that the material on record has been examined by the concerned officers before according sanction and the law does not warrant or require a statement being made that while according sanction, the officer signing the order had personally scrutinized the file and had arrived at the required satisfaction.
69. In the case of State of Madhya Pradesh Vs. Harishankar Bhagwan Pd. Tripathi (2010) 8 SCC 655, in a trap case regarding receipt of illegal gratifications by the accused persons for issuance of license, the special Judge as also the High court while holding that the trap had been proved, dismissed the case of prosecution on the ground that proper sanction had not been obtained to prosecute the accused-persons. The Apex Court setting aside the acquittal held "that while according sanction, officer concerned is not required to indicate that he had personally scrutinized the file and arrived at a satisfaction for according sanction and the order granting sanction did not suffer from any infirmity to acquit the accused-persons. Considering that Ghanshyam Das, one of the two accused died but since the defence failed to explain as to how the tainted currency came to be in possession of sole surviving accused/respondent, except for the statement that same had been handed over to him by co-accused Ghanshyam Das deceased, it held that unless there was understanding between the sole surviving respondent and Ghanshyam Das deceased, there could be no reason for Ghanshyam Das to have given the sole respondent a part of money, which he had received by way of illegal gratification".
70. In view of above, despite there being no direct evidence, the Apex Court held that it is a matter of common experience that direct evidence to prove dishonest actions or conspiracy between two persons is rarely available and the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused and finding pre-meditation of mind between the surviving and deceased accused persons, consequently set aside the acquittal order.
71. In the case of State of Orissa Vs. Mrutunjaya Panda 1998 SCCrR 741, where respondent was convicted for the offence under section 161 IPC (as was then applicable) and section 5(2), (1) (d) of Prevention of Corruption Act, 1947, the High court in appeal though concurred with the findings of trial court, set aside the conviction for want of valid sanction to prosecute, and the Apex Court making reference to provisions of section 465 Cr.P.C. held that "any error or irregularity in any sanction for the prosecution shall not be a ground for reversing an order of conviction by the appellate court unless in the opinion of that court a failure of justice has in fact been occasioned thereby."
72. In the case of State of Bihar and others Vs. Rajmangal Ram (2014) 11 SCC 388, in a matter where proceedings under IPC and Prevention of Corruption Act, 1988 were quashed by High Court. The Apex Court making reference of provisions of section 465 Cr.P.C. and section 19 of P.C. Act held that "In a situation where under both the enactments any error, omission or irregularity in the sanction, which would also include the competence of the authority to grant sanction, does not vitiate the eventual conclusion in the trial including the conviction and sentence, unless of course a failure of justice has occurred, it is difficult to see how at the intermediary stage a criminal prosecution can be nullified or interdicted on account of any such error, omission or irregularity in the sanction order without arriving at the satisfaction that a failure of justice has also been occasioned. This is what was decided by this Court in State Vs. T. Venkatesh Murthy wherein it has been inter alia observed that: (SCCp.767, para 14).
"14.......Merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice.""
73. Similar view was also taken in the case of State of Madhya Pradesh Vs. Virender Kumar Tripathi (2009) 15 SCC 533, by the three Judges Bench of Apex Court.
74. In view of the discussions made above, I find that there is no illegality or defect in the grant of prosecution sanction against the appellant and the alleged defect if any may not be used by appellant as shield or for cure from conviction, and there is nothing on record to show that due to alleged error, omission or irregularity in grant of prosecution sanction there was any likelihood of failure of justice or any failure of justice has in fact occasioned.
75. Apart from case laws relied by parties counsel discussed above, few more legal pronouncements may also be discussed.
76. The three Judges Bench of Apex Court in the case of Krishna Mochi Vs. State of Bihar (2002) 6 SCC 81 has held that "when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more than. Now the maxim "let 100 guilty persons be acquitted but not a single innocent be convicted", which is in practice, changing the world over and courts have been compelled to accept that, "society suffers by wrong convictions and it equally suffers by wrong acquittals. It further held that the duties of courts is not only to see that no innocent man should be punished, but also to ensure that no person committing an offence should go scot-free.
Some discrepancies are inevitable - But a discrepancy existing in a prosecution case, held should not weigh with the Court so long it does not materially affect the case, upon appreciation of evidence."
77. In (2010) 8 SCC 593 G. Parshwanath Vs. State of Karnataka, the Apex Court has held that "circumstantial evidence can sometimes be more reliable than eye witness account. Every suspicion is not doubt. Only reasonable doubts give benefit to the accused and not doubt of vacillating judge.
In a case based on circumstantial evidence if proved circumstances complete the chain - it cannot be said that in absence of motive proved, circumstances are of no consequence."
78. In the case of Lal Singh Vs. State of Gujarat 2001 (3) SCC 221, the Apex Court held that "concept of benefit of doubt is vague. The doubt must be reasonable one which occurs to prudent man and not to a weak or unduly vacillating or confused mind. Inspite of presumption of innocence, it has to be judged on the basis of a reasonable prudent mind. Smelling doubts for the sake of giving benefit of doubt is not the law of land."
79. The above facts and motion of proposals for frequent re-organization and conversion of plots and enhancement of their areas as well as conversions of plot no.26 in corner plot with provision of extra vide road and their approval without any query or objection by appellant Smt. Neera Yadav herself, reflects that these proceedings were not done in good faith and in ordinary course of business of Noida rather were done with a dishonest mind and with dishonest intentions to obtain valuable properties by appellant, but allotment of several properties in her name and in the name of members of her family as well as to cause undue loss to the Noida.
80. I have gone through the record summoned from the department of Personal and Training, North Block, Delhi relating to prosecution sanction and after careful perusal thereof, I find that merely for the reason that the order of prosecution sanction has been issued under the signatures of Under Secretary, Shri D.P. Khatri, the grant of prosecution sanction may not be held bad or invalid. The material on record shows that the prosecution sanction under Section 19(1) of PC Act has been granted by the competent authority, the Prime Minister of India after due consideration of the entire material brought before him and there is no error, omission or irregularity in grant of prosecution sanction.
81. Upon hearing counsel for the parties and perusal of record, I find that there is no material contradiction in prosecution evidence and the prosecution has proved the charges against the appellant to the hilt by reliable and cogent evidence produced by it. The circumstantial evidence supported with documentary evidence is strong enough to prove the charges and there is no doubt in the commission of offence by appellant or to hold that the offence could have been committed by someone else, other than the appellant. As discussed above, the benefit of doubt does not require to mean a thorough search for finding a way as to how the accused may be acquitted.
82. It is pertinent to mention that plot no.27 allotted to Deputy of appellant Smt. Neera Yadav (Shri Rajiv Kumar the then Dy. CEO) is subject matter of conviction (of appellant in Special Trial No.19 of 2002, Criminal Appeal No.4888 of 2012 Neera Yadav vs. CBI) and not of this Special Trial no.28/2002 and its reference if has come up at any place, in view of the fact that the above plot is adjacent to plot no.26, of appellant (which is subject matter of this trial) the discussions in respect of plot no.27 have are only in order to clarify the events of ever changing areas and positions of plot nos.26, 27 and 28 and has nothing to do with taking of any decision in respect of correctness of her conviction in this case. The observations, made in respect of making the provision of 7.5 mts. wide road in East of plot no.26 in order to convert it in corner plot or in respect of enhancement of its area by shifting of various plots towards further West are not disputed and discussions on above facts has been made carefully and the confirmation of conviction of appellant Smt. Neera Yadav in this appeal is independent of any observations in respect of allotment of plot no.27 to Rajiv Kumar.
83. In view of the discussions made above, I find that there is no error, omission or irregularity in the grant of prosecution sanction as required under Section 19(1) of PC Act by the competent authority and even in case there has been some error or irregularity in it (which is not there), in view of the facts of the case, I find that due to the alleged error or irregularity no failure of justice has occasioned and there is no sufficient ground for reversing or altering the conviction or sentence in view of the provisions of Section 19(3) of PC Act.
84. In view of the discussions made above, I have come to the conclusion that it is proved from the evidence on record that the appellant with dishonest intentions and without any bonafides committed the offence of criminal misconduct by abusing her position as public servant, being CCEO of Noida in the matter of allotment of shops as well as plots in the names of her daughters Km. Sanskriti & Km. Suruchi, (who were dependent on her and were members of her family, by the funds provided by the appellant herself) and as well as in the matter of allotment of residential plot in her favour after closure of scheme and getting it converted with a larger plot in most developed and prestigious sector on Delhi border and in further converting it to a corner plot as well as in the matter of getting it allotted another plot (after execution of lease deed) in the name of enhancement of its area as discussed above and obtained valuable things and pecuniary advantages, without any public interest and caused loss to Noida. The findings of trial court as regards validity of prosecution sanction as well as with respect to conviction of appellant are perfect on facts and law and the trial court has not committed any mistake in arriving at those findings. The appellant has failed to show any illegality or incorrectness in the impugned judgment and order of conviction, passed by court below and there is no sufficient ground for interfering with or setting it aside the impugned judgment and order of conviction passed by the learned Special Judge, Ghaziabad. The appeal has got no force and is liable to be dismissed.
85. The impugned judgment and order of conviction and sentence is confirmed and the appeal is dismissed, accordingly. All the interim orders including order granting bail to appellant or staying operation of impugned order of conviction or otherwise stand discharged.
86. The bail bonds furnished by appellant in court below stand cancelled and sureties stand discharged. The appellant who is not present will forthwith surrender before the trial court to undergo remaining sentence.
87. Let the lower court record be transmitted to court below immediately along with a copy of judgment, with a direction that it shall take immediate steps for arrest of appellant for serving the remaining sentence.
88. Let the record summoned from various Departments vide order dated 21.11.2014 on application of appellant Smt. Neera Yadav No.339015 of 2014 be also immediately sent back to respective departments concerned.
Order date: 24.02.2016 VS