Delhi District Court
Cbi vs Subhash Chander And Ors on 14 May, 2025
IN THE COURT OF SH. SHAILENDER MALIK, SPECIAL JUDGE (PC
ACT), CBI-21: ROUSE AVENUE COURT COMPLEX, NEW DELHI
CBI vs. Subhash Chander & Anr.
RC No. DAI-2017-A0033/CBI/ACB/ND
CBI No. 30/2021
CNR No.DLCT11-000235-2021
Central Bureau of Investigation
Versus
(1)Subhash Chander
s/o late Sh.Hari Chand
r/o House No.1854, Sector-23,
Sonipat, Haryana
Permanent Add: Village Gangana,
Tehsil Gohana, Distt. Sonipat,
Haryana. ....Accused No.1
(2)Smt.Kavita
w/o Subhash Chander
r/o House No.1854, Sector-23,
Sonipat, Haryana. ....Accused No.2
Date of Institution : 26.07.2021
Date of judgment reserved : 02.05.2025
Date of judgment pronounced : 14.05.2025
JUDGEMENT
1. Accused Subhash Chander S/o Late Sh. Hari Chand is facing
prosecution for offence u/s 13(1)(e) r/w 13(2)(d) of PC Act, 1988 and
CBI vs. Subhash Chander & Anr. (judgment) Page No. 1
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SHELENDER
SHELENDER MALIK
MALIK Date:
2025.05.14
17:31:40 +0530
Kavita W/o Subhash Chander is facing Charge for offence Section 109
IPC r/w 13(2) r/w 13(1)(e) of PC Act, 1988.
FIR
2. Precise facts of the present case are that on the basis “credible
source information”, present case was registered against accused Subhash
Chander who at the time of registration of FIR was posted as constable at
CBI/ACB, Hyderabad as well as against his wife Kavita. It is alleged in
the FIR that accused Subhash Chander has been involved in corrupt and
illegal practices and during the period from 01.04.2012 to 31.03.2017 and
has amassed assets of Rs.88,06,359/- in his name as well as in the name
of wife Kavita, which was disproportionate to their known legal source of
income. It is alleged in the FIR that accused has also been running medical
store/firm in the name and style of ‘M/s Helpline Dawa Bazar’ and
accused persons have acquired a property No. 1854, Sector 23, Sonipat,
Haryana in the name of his wife Kavita on 05.06.2015 for total sale
consideration of Rs.1,02,21,000/-, out of which Rs.92,20,000/- was paid in
cash. Thus, the FIR was registered with the allegation of accused persons
having amassed disproportionate assets to the tune of 381%.
Accused Subhash Chander being Public Servant
3. After registration of the FIR, investigation was carried out by
the CBI. It came in the investigation that accused Subhash Chander was
appointed as constable / driver in CRPF in April 1991, later, he joined
CBI/ACB, New Delhi in August 1999 on deputation basis and he stayed in
ACB/CBI till November 2012. During this period, he got permanent
absorption in CBI w.e.f 01.01.2004. Accused Subhash Chander remained
CBI vs. Subhash Chander & Anr. (judgment) Page No. 2
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SHELENDER MALIK
MALIK Date:
2025.05.14
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posted at different branches of CBI. At the time of registration of FIR, he
was serving as constable in ACB, CBI Hyderabad since 31.01.2017.
Family of the accused Subhash Chander:
4. It came in the investigation that accused Subhash Chander had
six brothers namely Sh. Randheer, Sh. Laxman, Sh. Vikram, Sh. Vinod, Sh.
Dharamveer and Sh. Krishan and one sister namely Smt. Veermati. Father
of accused Subhash Chander had died on 22.12.2018. Father of accused
Subhash Chander had 21 acres of agricultural land at village Gangana,
Sonipat which remained undivided uptill 31.03.2017. Accused Subhash
Chander married to accused No. 2 Kavita and out of their wedlock two
children namely Pradeep and Manisha. Accused No. 2 Kavita is stated to
be house-wife. However, she became partner (50% share) in M/s Helpline
Dawa bazar vide partnership deed 01.04.2016. Said partnership later
dissolved vide Dissolution Deed dated 01.05.2017 and thereafter Kavita
became sole proprietor of the said firm. Investigation revealed that Sh.
Mahendra father of accused Kavita has two sons Namely Sh. Bijender, Sh.
Satyawan and two daughters namely Smt. Kavita (accused, herein) and
Guddi. As per revenue record, Sh. Mahendra has only 1.5 acre of
agricultural land at village Ahulana, Block/Tehsil: Ganaur, Distt. Sonipat,
Haryana.
5. After the registration of the FIR, search proceedings were
carried out in the presence of independent witnesses on 17.09.2017 at three
premises of accused Subhash Chander and accused Kavita and during
those searches, certain incriminating documents relating to Assets,
CBI vs. Subhash Chander & Anr. (judgment) Page No. 3
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SHELENDER MALIK
MALIK Date:
2025.05.14
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Incomes, Expenditures and Investments made by accused persons were
recovered.
6. For the purpose of evaluating disproportionate assets the
check period was taken as 01.04.2012 to 31.03.2017 as during this period
accused persons stated to have amassed major movable and immovable
assets and also maintained substantial expenditure / investments. It is
mentioned in charge-sheet that before the commencement of check period
01.04.2012 accused Subhash Chander and accused Kavita were having
movable / immovable assets worth Rs.1,94,557/-.
(STATEMENT-A)
a. Immovable Assets:-1,73,000/-
7. Investigation has revealed that before check period i.e.,
01.04.2012, Sh. Subhash Chander and Smt. Kavita were having movable /
immovable assets worth Rs.1,94,557/- Detail is as under:-
Details of Name of the Period of Mode of Approx. Cost of
Assets Registered acquisition acquisition Assets (in Rs.)
Owner
H.No.722/30, Subhash 20.03.2006 Sale Deed at Sub Rs.1,60,000/- (cash &
Vikas Nagar, Chander S/o Registrar, Sonipat. cheque) + Rs.12,800/-
Gali No.1, Hari Chand (stamp duty) + Rs.500 Kakrol Road, (Registration fee) = Sonipat (100 Rs.1,73,300/- sq. Yards) b. Movable Assets:-21,257/- CBI vs. Subhash Chander & Anr. (judgment) Page No. 4 Digitally signed by SHELENDER SHELENDER MALIK MALIK Date: 2025.05.14 17:32:23 +0530
8. Investigation revealed that accused persons have closing bank
balance of Rs.21,257 as on 31.03.2012 in their Saving bank Accounts.
Details are as under:-
S. No. Name Description Closing balance
as on 01.04.2012
1 Subhash Chander Bank Balance (SBI, Lodhi road salary Rs.4,688/-
A/c No.10591485860
2 Subhash Chander & PNB Sonipat Main A/c No. Rs.16,569/-
Kavita 0434000100726278
Total 21,257/-
There is no much dispute to ‘Statement – A’ from accused persons.
(STATEMENT-B)
(Movable and Immovable assets of accused at the end of check period)
9. As per charge-sheet, following are the details of movable and
immovable property of the accused at the end of the check period:
1. Immovable Assets: 1,03,94,300/-
S.No. Details of Name of the Period of Mode of Approx. Cost
Assets Registered acquisitio acquisition of Assets (in
Owner n Rs.)
1 House no.1854, Smt. Kavita 05.06.2015 Sale Deed Rs.1,02,21,000/
Sector 23, W/o Sh. document No. –
Sonipat (376.74 Subhash 2584,
sq. yds.) Chander dt:05.06.2015 at
Sub-Registrar
Office, Sonipat.
2 H. No. 722/30, Subhash 20.03.2006 Sale Deed Rs.1,73,300/-
Vikas Nagar, Chander S/o No.17247,
Gali No. 1, Hari Chand dated :20-03-2006
Kakroi Road, at Sub-Registrar
Sonipat (100 sq. Office, Sonipat
Yards)
CBI vs. Subhash Chander & Anr. (judgment) Page No. 5
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SHELENDER MALIK
MALIK Date:
2025.05.14
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2. Movable Assets : Rs.15,83,254/-
S.No. Name Description Closing balance at end
of check period
1 Subhash A/c No. 10591485860 at SBI Lodhi Rs.1,30,697/-
Chander Road, New Delhi.
2 Subhash & A/c No. 0434000100726278 at PNB, Rs.2,58,538/-
Kavita Sonipat, Haryana.
3. Kavita W/o A/c No. 33111613021 at SBI Gur Rs.2,55,261/-
Subhash Mandi, Sonipat
Chander
4. Pradeep S/o A/c No. 33111590589 at SBI Gur Rs.3,07,378/-
Subhash Mandi, Sonipat
Chander
5. Ms. Subhash A/c No. 0434000107660502 at PNB, Rs.6,31,380/-
Chander HUF Sonipat, Haryana.
(Subhash,
Kavita, Pradeep)
Total Rs.15,83,254/-
10. It is mentioned in the charge-sheet that during investigation, it
revealed that accused Subhash Chander and his wife Smt. Kavita
purchased another house being house no. 1854, Sector 23 (376.74 sq.yds.),
in the name of accused Kavita, on 05.06.2015 for total cost of
Rs.1,02,21,000/-. It is stated that in respect of above mentioned
immovable property, during the search proceedings, copy of sale deed dt.
6.5.2015, Original Ikrarnama and Bayana dated 12.05.2015, original
receipt dt. 12.05.2015 in respect of Bayana (earnest amount) of Rs.40
lakhs, original affidavit dt. 05.10.2015 and other documents were
recovered. It is mentioned that seller of that property is Smt. Kavita W/o
Sh. Sukhbir Dahiya, who did not join the investigation as Haryana Police
CBI vs. Subhash Chander & Anr. (judgment) Page No. 6
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SHELENDER
SHELENDER MALIK
MALIK Date:
2025.05.14
17:32:39
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had registered one FIR No.0651 dt. 23.10.2015 against her u/s 406, 420
and 506 IPC at PS: Sonipat City . Further said Smt. Kavita W/o Sukhbir
had been declared proclaimed offender in that case, therefore, another FIR
No.0138 dated 15.02.2018 u/s 174 A IPC was registered. However,
husband of seller namely Sh. Sukhbir Dahiya stated to have joined the
investigation.
11. It is mentioned in the charge-sheet that during investigation
accused Subhash Chander vide letter dt. 12.01.2018, after about 9 months
of date of search made a false claim that his father, brothers and relatives
had helped him to buy the above mentioned house No.1854, Sector 23,
Sonipat as per the details given in tabulation form mentioned in para 17.12
of the charge-sheet. It is stated that the claim of accused regarding
receiving of financial help from his relatives, for purchase of above
mentioned house, was found to be not genuine and untrustworthy because
as per Ikrarnama and receipt dated 12.05.2015, seller Smt. Kavita W/o
Sukhbir Singh received Rs.40 lakhs in cash, from accused Smt. Kavita
W/o Subhash Chander as part of sale consideration of Rs.01,05,00,000/-.
Alleged financial helps/contributions/loans from relatives were without
any agreement, nor have been repaid. Moreover, there is no intimation
regarding those transactions of financial help either to department of
accused or in Income Tax Department to mention as gift or loan etc. None
of those relatives could provide any document, agreement or receipt or
bank transaction to legally justify their claim of having given help. None
of those relatives filed ITRs.
CBI vs. Subhash Chander & Anr. (judgment) Page No. 7 Digitally signed by SHELENDER SHELENDER MALIK MALIK Date: 2025.05.14 17:32:47 +0530
12. It is further mentioned that one of the relative namely Bal
Kishan who claimed to have given Rs.9 lakhs in cash had shown 8 bank
withdrawals. It is stated that there is no explanation as to why the money
was given in cash when such money could be transferred by banking
channels. Similarly, claim of Mahender Singh (father of accused Kavita)
of having contributed Rs.15 lakhs, was also found to be untrustworthy in
the investigation. Similarly, brothers of accused Subhash Chander has
stated that agricultural land in the name of their father Hari Chand is still
undivided and brothers stated to have given funds from the sale of crops,
kept by their father. Giving of such huge amount, out of sale of
agricultural output by different brothers was stated to be not believable,
when same was paid without any consideration and there has been no
evidence of return of the money.
13. The authenticity of J forms recovered during the searches and
produced by accused Subhash Chander in his defence was found to be
doubtful as those J forms do not bear signature of seller at the prescribed
column, those J forms also failed to mention who is the cultivator, owner
of the land and who brought the crops at Anaaz Mandi. During
investigation, commission agent, accountant of M/s Sangwan Trading
Company and M/s Bhalle Ram Randhir Singh, of New Anaaz Mandi have
stated during investigation that they entered the name of Subhash Chander
and Pradeep as per request by brothers of Subhash Chander. Moreover, in
J forms recovered during search there were overwriting and name of
Subhash Chander had been modified. It is stated that even if agricultural
income was exempted from Income Tax, farmer or any other person still
CBI vs. Subhash Chander & Anr. (judgment) Page No. 8
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SHELENDER MALIK
MALIK Date:
2025.05.14
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was required to reflect the agricultural income in his ITR. Whereas,
brothers of Subhash Chander had not filed any ITR. Moreover, in case of
giving of gift or loan of such huge amount in lakhs, there must be some
documentation of the same or reflection of such transactions in the ITR
which was not there.
14. It is stated in the charge-sheet that accused Subhash Chander
claimed to have contributed Rs.20 lakhs from his savings for purchase of
house No. 1854, Sector 23, Sonipat, however, that claim was also not
found to be acceptable as he did not produce any evidence regarding
saving of aforesaid amount.
(STATEMENT- C)
(Income during the check period)
15. It is stated in para 17.13 of charge-sheet that accused Subhash
Chander and Smt. Kavita and their son Pradeep had earned income of total
amount of Rs 37,44,062/-, the break up of which is given in following
tabulation:
S.No. Description Amount 1 Net Salary of Sh. Subhash Chander Rs.21,22,451 2 Interest received from Loan extended to Sh. Rs.3,000
Virender Deshwal of M/s Dhanraj Trading Co.
(share of Sh. Subhash Chander)
3. Rental income received from Sh. Jaipal Singh Rs.10,000
in respect of house No.722/30, Vikas Nagar,
Sonipat for the period 01.01.2017 till
31.03.2017
4. Rental income received from Sandeep Kuamr Rs.1,80,000
in respect of house No.722/30, Vikas Nagar,
Sonipat for 12/2013 to 12/2016 @ Rs.5000/-
CBI vs. Subhash Chander & Anr. (judgment) Page No. 9
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SHELENDER MALIK
MALIK Date: 2025.05.14
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per month
5. Agricultural income of Subhash Chand (1/7th Rs.8,20,922
share)
6. Income of Kavita as per ITRs (from sources Rs.3,75,000
other than agriculture)
7. Income from interest in saving accounts – Rs.71,447
A/c No. 10591485860 at SBI, Lodhi Road,
New Delhi, A/c No. 0434000100726278 at
PNB, Sonipat, Haryana, A/c No.33111613021
at SBI, Gur mandi, Sonepat, A/c No.
33111590589 at SBI Gur Mandi, Sonepat and
A/c No.0434000107660502 at PNB, Sonipat,
Haryana.
8. Salary income of Sh. Pradeep S/o Subhash Rs.71,663
from M/s Helpline Dawa Bazaar as per his
ITRs for A.Y 2017-2018
9. Salary of Ms. Kavita o Subhash from M/s Rs.89,579
Helpline Dawa Bazaar as per her ITRs for A.Y
2017-2018
Total Rs.37,44,062/-
16. It is stated that during the check period accused Subhash
Chander remained posted in different offices / Dept. / branches, as per the
details given in para 17.14 and accused Subhash Chander earned total
salary of Rs.21,22,491/-, the breakup of which is given. As per the ITRs
filed by Subhash Chander, Smt. Kavita and Pradeep they have net income
of Rs.49,86,696/- during check period.
17. During the searches conducted in the investigation at house
No. 1854, Sector 23, Sonipat, a receipt dated 7.12.2013 was recovered of
Rs.25 lakhs given by accused Subhash Chander to one Virender Deswal of
M/s Dhanraj Trading Company. Mr. Dhanraj was examined who stated
that he had taken said short term loan of Rs.25 lakhs, which was returned
CBI vs. Subhash Chander & Anr. (judgment) Page No. 10
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SHELENDER MALIK
MALIK Date:
2025.05.14
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within few days with interest of Rs.30,000/-. Accused Subhash Chander in
his letter dt. 03.08.2018 admitted regarding giving of loan of Rs.25 lakhs
however, stated that same was given by pooling of 90 % of resources from
his brothers. Loan was re-paid with interest and since accused Subhash
Chander as per him contributed 10 % of the loan amount, therefore,
Rs.3000/- has been added as interest income.
18. During search on 17.09.2017, one Ikrarnama cum Kirayanama
dated 10.01.2017 of rent of Rs.5000/- per month, in the name of one Jaipal
Malik, was recovered. Said Jaipal was examined who stated to have paid
rent of Rs.10,000/- per month to accused Subhash Chander, in cash for
being tenant of Ground floor of house No.722/30, Vikas Nagar, Sonipat
from 1.1.2017 till 31.03.2017. As such that amount was added to the
income of the accused Subhash Chander.
19. It is stated in the charge-sheet that accused during
investigation claimed his rental income of Rs.4,16,000/- for period from
1.4.2012 to August 2016 in respect of first floor of House No.722/30,
Vikas Nagar, Sonipat from tenant Sandeep Kumar. Accused Subhash
Chander produced tenant Sandeep Kumar who stated that he took said
floor for rent @ Rs.8000/- per month from March 2009 till August 2016.
However, there was no rent agreement between accused Subhash Chander
and Sandeep, produced. It is stated in charge-sheet that taking into account
the rent in tenancy between accused Subhash Chander and Jaipal, in
respect of Ground floor of the same property as well as also taking into
account statement of Naveen Chahal (subsequent tenant of first floor of the
house), benefit of rental income of Rs.1,80,000/- (Rs.5000/- per month)
CBI vs. Subhash Chander & Anr. (judgment) Page No. 11
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SHELENDER MALIK
MALIK Date:
2025.05.14
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was given to accused Subhash Chander for check period. However, it is
mentioned in charge-sheet that said tenant Sandeep Kumar admitted that
he remained out of India (Dubai) for most of the time i.e., for 3 years from
2011 to 2013 as he was living with his family at UAE.
20. During investigation accused Subhash Chander also claimed
agricultural income by way of J forms and ITR returns. It came in the
investigation that there was 21 acres of agricultural land, in the name of
father of accused Subhash Chander. That agricultural land remained
undivided among the brothers of accused Subhash Chander. As per the
report taken from Revenue Authority of that area, “Jhad Paidawar”
(calculation of total agricultural income), was given in respect of that land
to be of Rs.57,46,451/-. It is stated that since accused Subhash Chander
has 6 brothers and one sister beside their father, even assuming 1/7th share
of accused Subhash Chander in total agricultural income, his share would
come of Rs.8,20,922/- for check period and therefore same was added in
the above mentioned table. However, it be noted that accused Subhash
Chander has not shown any amount of agricultural income in his ITRs.
During the searches conducted at his premises J forms or agricultural
receipts in the name of accused, his wife Kavita and in the name of his son
Pradeep, as well as in the name of his brothers were recovered. However,
those J forms were found by CBI to be unreliable because J forms did not
mention details of agricultural land and the person in whose name it was
issued, J forms did not mention in the details of cultivators and the produce
as well as the person who produced the same in the Anaaz Mandi. None of
the J forms were found bearing signatures of the sellers of crops etc.CBI vs. Subhash Chander & Anr. (judgment) Page No. 12
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SHELENDER MALIK
MALIK Date:
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21. It is mentioned in the charge-sheet that accused Subhash
Chander claimed agricultural income amounting Rs.2,91,815/- in ITRs of
“Subhash Chander HUF” for assessment years 2015-2016, 2018-2017 and
2017-2018. However, CBI did not give benefit of such agricultural
income as there was no agricultural land exist in the name of “Subhash
Chander HUF” or even in the name of Subhash Chander as Karta as well
as for other reasons mentioned in para 17.20 of the charge-sheet.
22. It is mentioned in the charge-sheet that father of accused
Kavita namely Mahinder, own as per revenue record 1.5 acres of
agricultural land. His total income from all sources, including agriculture
do not exceed Rs.15 lakhs during the check period (1.4.2012 to 31.3.2017).
It is mentioned that said Mahinder has 2 sons namely Bijender and
Satyawan and two daughters namely accused Smt. Kavita and Smt. Guddi
W/o Darshan. As such, the share of accused Smt. Kavita in the income of
her parental family would be Rs.3,75,000/-. It is stated that father of
accused Kavita, Mahender was examined who stated that he helped her
daughter Smt. Kavita as and when needed but she never hold any share
from his agricultural income. Still her share of Rs.3,75,000/- has been
added in the income for check period under the head “Income from other
sources”.
23. It is stated in the charge-sheet that although Smt. Kavita W/o
Subhash Chander in her ITRs, claimed her agricultural income of
Rs.7,91,754/- and four J forms were highlighted. However, there is no
agricultural land in her name, nor any evidence showing she being
CBI vs. Subhash Chander & Anr. (judgment) Page No. 13
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SHELENDER MALIK
MALIK Date:
2025.05.14
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involved in any agricultural activity. Smt. Kavita also failed to furnish any
documentary evidence in support of such claim.
24. During investigation, it revealed that a partnership firm M/s
Helpline Dawa Bazar at 11/2 and 11/3 Yusuf Sarai, Delhi was formed and
operational from 01.04.2016 vide partnership deed dated 01.04.2016
between Smt. Kavita (50 % share), Sh. Pradeep (son of accused ), (40 %
share) and one Jasbir (10 % share). Salary received by respective partners
in the said firm as per the ITR for A.Y 2017-2018, show that salary in the
name of Smt. Kavita as Rs.89,579/-. That income has been added in
Statement – C. Later, that firm was dissolved vide dissolution deed dt.
01.05.2017 and Smt. Kavita became sole proprietor of M/s Helpline Dawa
Bazar.
STATEMENT- D
(Expenditure during the check period)
S.No. Description of Expenditure Amount
1 Purchase of Sony accessories vide Bills / Retail Invoices Rs.54,400/-
No.Aed/13-14/3421, dated :01/Nov/13 from M/s Aarco
Electronics K 45, Lajpat Nagar 2, New Delhi
2 Purchase of Sony accessories vide bills / Retail Invoices No. Rs.22,000/-
Aed/13-14/1528, dated :28/June/13 from M/s Aarco Electronics
K 45, Lajpat Nagar 2, New Delhi
3. Purchase of pash Jal from Ahujasons, E-20, South Extension Rs.27000/-
part II, Main Market, New Delhi vide Bill / Retail Invoices,
dated:17.07.2016
4 Purchase of Computer vide Retain Invoices No.205-007283, Rs.69,000/-
dated:09/03/16 from Computer Empire 205, Meghdoot Builing,
Nehru Place, Delhi
5 Purchase of washing machine vide Bills / Retail Invoice No. Rs.9,500/-
731, dated :06/06/2013 (Cash) from Gen Next Traders Railway
road, Near Bank of Baroda, Sonepat
CBI vs. Subhash Chander & Anr. (judgment) Page No. 14
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MALIK Date:
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6 Purchase of Jewellery vide cash memo 399, dt:25/11/15, cash Rs.2,27,000/-
memo no. 16001, dt:21/11/15 fro P.P. Jewellers, PP Chowk,
Gurudwara Road Corner, Karol Bagh, New Delhi
7 Purchase of Coolar vide Bill No.15135, dated:08/0616 from Rs.18,000/-
PURI TRADERS 9, M.C. Market, est House, Sonepat-131001
8 Purchase of Jewellery vide Estimate No. 27 from Rama Rs.1,23,000/-
Krishna Jewellers Pvt. Ltd. at D/34, Main Road, Central
Market, Lajpat Nagar-II, New Delhi-110024.
9 Purchase of Sony laptop vide Bill / Retail Invoice, dated Rs.31,500/-
:15/Oct/13 from R.K. V89, Khanna Market, Lodhi Colony,
New Delhi -3
10 Purchase of Samsung articles vide bills / Retail Invoices No. Rs.1,27,000/-
SONIPAT-0281 DATED:09/06/2016 from Sargam India
Electronics Pvt. Ltd., Shop No.A-63-64, ATRIM Floor, Parker
mall, Sec-62, Kundli, Sonipat, Haryana
11 Household inventory articles Rs.3,49,250/-
12 Investment in M/s Helpline Dawa Bazaar Rs.7,76,420/-
13 Brokerage fee paid to Manish Sharma by Subhash Chand for Rs.70,000/-
shop No.11/2 and 11/3, Yusuf Sarai, Delhi
14 Payment to CBI Housing Society for a Plot of 100 Sq. yards at Rs.1,00,000/-
the CBI Employees Co-op House Building Society, Village
Rasoolpur, Mullanpur, Punjab
15 Payment towards HDFC Loan A/c No. 569266248 and interest Rs.3,29,153/-
(loan in respect of CBI Housing Society)
16 Booking of Shop / Unit No. GF-148, 242 Sq. yards at Rs.6,91,744/-
Parsvanath City Centre, Sonipat
17 Education of children Rs.12,68,840/-
18 Payment towards LIC Policy Number 126712945, Policy Rs.5,05,412/-
Number 126712969 and Policy Number 117059034
19 Repayment of loan taken from LIC Housing Finance Ltd. Rs.5,33,383/-
20 Loan to Anil Kumar Rs.4,00,000/-
21 Benami investment in M/s Helpline Dawa Bazaar through Rs.25,00,000/-
Mahadev Impex
22 Household expenditure (1/3 of Gross income-Income tax Rs.9,11,064/-
Total Rs.91,43,666/- CBI vs. Subhash Chander & Anr. (judgment) Page No. 15 Digitally signed by SHELENDER SHELENDER MALIK MALIK Date: 2025.05.14 17:33:53 +0530
25. It is mentioned in the charge-sheet that during the search at
the premises of accused Subhash Chander certain receipts of articles,
jewelry items were recovered as per the details given in para 17.25 of the
charge-sheet. Therefore, on the basis of those documents cost/expenditure
on those articles have been shown in sl. No. 1 to 10 of above mentioned
table of expenditure. It is stated that accused Subhash Chander and Kavita
incurred a sum of Rs.3,49,250/-, during check period for purchase of
various house hold articles which were found during the house search, the
details of which has been mentioned in para 17.26 of the charge-sheet.
26. In the statement D as noted above a sum of Rs.7,76,420/- have
been shown at Sl. No. 12 of above said table as an expenditure /
investment in M/s Helpline Dawa Bazar as it was a separate legal entity
having separate PAN and separate ITR. It is mentioned that above said
amount of Rs.7,76,420/- was calculated on the basis of the fact that
accused Subhash Chander and his wife Kavita had taken two shops No.
11/2 and 11/3, GF Yusuf Sarai, New Delhi on lease for firm M/s Helpline
Dawa Bazar vide registered lease deed dated 26.02.2016 executed between
Nitin Gupta and Prince Gupta as Lessor and M/s Helpline Dawa Bazar
through Smt. Kavita as lessee in respect of shop No. 11/3, Yusuf Sarai,
New Delhi. Another lease deed dated 29.02.2016 between Smt. Nirmal
Gupta as Lessor and and M/s Helpline Dawa Bazar through Smt. Kavita
as lessee in respect of 11/2, Yusuf Sarai, New Delhi. Total security
amount given for those two lease was of Rs.1,60,000/- paid by Smt. Kavita
besides expenditure of Rs.21,600/- for stamp duty. The lease period under
those lease deed was 5 years and total amount of annual rent amount
CBI vs. Subhash Chander & Anr. (judgment) Page No. 16
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specified under those lease deed was Rs.80,000/- paid by Smt. Kavita.
Further, it came in the investigation that one Manish Sharma, witness to
those lease deed was examined and revealed that accused Subhash
Chander paid Rs.70,000/- as brokerage fees in cash, for arranging those
shops for firm M/s Helpline Dawa Bazar.
27. It is stated that Ashish Goel, Auditor cum CA gave tax audit
report of FY 2016-2017 stating that initial capital introduced by partners
for business of M/s Helpline Dawa Bazar was 11,15,000/- (out of which
6,15,000/- was contributed by Kavita Devi and Rs.5,00,000/- was
contributed by Pradeep Singh) as per the details given in charge-sheet.
Out of the initial investment of Rs.11,15,000/-, Rs.6,00,000/- was
withdrawn. Third partner namely Jasbir added in the firm to the extent of
10 % was added, without any contribution/investment by him. Thus,
initial investment in M/s Helpline Dawa Bazar was found to be
Rs.8,46,600/-.
28. It is also mentioned in the charge-sheet that during
investigation while examining the balance sheet of m/s Helpline Dawa
Bazar, it was noticed that there was an unsecured loan of Rs.25,00,000/-
shown as on 31.03.2017. Upon investigating regarding that entry of Rs.25
lakhs, it revealed that it was re-routing of ill gotten money of accused
Subhash Chander and details of terms of event were mentioned in
proceedings memo dated 01.11.2019. It revealed in the investigation that
father of accused Subhash Chander approached one Ashok Gupta for
getting a bank entry of Rs.25 lakhs in the name of firm M/s Helpline Dawa
Bazar. Ashok Gupta spoke to one Pawan Gupta and Gaurav (proprietor of
CBI vs. Subhash Chander & Anr. (judgment) Page No. 17
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Mahadev Impex) and asked to provide entry of Rs.25 lakhs. Pursuant
there to a bank entry of Rs. 25 lakhs was sent from the account of M/s
Mahadev Impex in the bank account of M/s Helpline Dawa Bazar.
Amount of Rs.25 lakhs in cash was delivered by Hari Chand, father of
accused Subhash Chander to Pawan Gupta as a full and final settlement.
This fact is reflected from the statement of Ashok Gupta, Pawan Gupta and
Gaurav Gupta. Their statement was also recorded u/s 164 Cr.P.C.
29. It is stated in the charge-sheet that accused Subhash Chander
and Kavita put forth a after thought defence by their letter dt. 29.11.2019
when their benami transaction was unfolded. It is stated that they admitted
sequence/facts and laid onus on Pradeep and Jasbir by stating that they
needed Rs.25 lakhs for firm M/s Helpline Dawa Bazar which has been
managed by Sh. Hari Chand from Ashok Gupta and Pawan Gupta. It is
stated that accused persons stated in their explanation that source of money
of Rs.25 lakhs by late Hari Chand (who died on 22.12.2018) was i) Rs.10
lakhs arranged by Hari Chand by sale of agriculture produce vide J forms
ranging from 2000 onwards till 2015; ii) Rs.15 lakhs was taken by Late
Hari Chand from Sh. Krishan (brother in law of Sh. Mahinder (father of
Kavita), Sudhir son of Krishan and Bijender (brother in law of Laxman)
(younger brother of accused Subhash Chander);
30. It is stated that such explanation of accused persons given by
letter dt. 29.11.2019 was not legally justified as accused failed to give
reason for need of such account of Rs.25 lakhs on 28.04.2016 through
RTGS from M/s Mahadev Impex as unsecured loan. There is no
justification as to why bank loan for startup of their business by executing
CBI vs. Subhash Chander & Anr. (judgment) Page No. 18
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legal document, from bank was not taken . Even the financial help from
the relatives as stated, is also without any paper work and relatives are
distinct.
31. It is further mentioned in para 17.29 of the charge-sheet that
accused Subhash Chander had invested Rs.5,46,000/- for purchase of a
plot of 100 sq. yds at CBI Employee Cooperative House Building Society.
He had availed loan of Rs.2,70,000/- HDFC Bank, Chandigarh for that
purpose. About Rs.1 lakh has been paid by him in CBI society as well as
paid the installments of loan availed. He paid Rs.3,29,153/- (inclusive of
interest @ 9 %) on that loan, during the check period.
32. Accused Subhash Chander also booked shop/unit No.GF-148,
242 Sq. yds. at Parasvnath City Centre – Sonipat and paid Rs.6,91,744/-
during the check period. Detailed description of investment has been
given in tabulation form in para 17.29. Further it is stated that accused
Subhash Chander incurred expenditure of Rs.12,68,840/- towards the
education of his two children namely, Pradeep and Ms. Manisha, as per the
details given in tabulation form in para 17.30. Similarly, it also came in
the investigation that accused Subhash Chander made investment in LIC
schemes as per the details given in para 17.31 and paid total amount of
Rs.5,05,412/- during check period, the break up of which is given in that
para. Further accused Subhash Chander paid total amount of Rs.5,33,000/-
towards the loan installments during check period for a loan of Rs.5 lakhs
availed from LIC Housing Finance Ltd., as per the details given in para
17.32.
CBI vs. Subhash Chander & Anr. (judgment) Page No. 19 Digitally signed by SHELENDER SHELENDER MALIK MALIK Date: 2025.05.14 17:37:05 +0530
33. It is further mentioned in 17.33 of charge-sheet that during the
search proceedings, a agreement dated 02.05.2016 regarding giving of a
loan of Rs.4 lakhs in cash to one Anil Kumar, was recovered. Accused
Subhash Chander took photocopy of election ID card of Anil Kumar and a
cheque drawn on HDFC Bank, Yusuf Sarai as security for that loan. Said
borrower Anil Kumar was examined in the investigation. It is stated
accused Subhash Chander has never intimated to his department about any
of loans, advances, purchase of movable or immovable properties except
the details mentioned in para 17.34.
34. It is stated that accused has given his defence/explanation,
during investigation by sending six letters dated 12.01.2018, 03.08.2018,
29.11.2018, 30.10.2019, 29.11.2019, 28.05.2020 and 12.06.2020. It is
stated that defence/explanation as furnished by accused Subhash Chander
and his wife Kavita had been rebutted by proper investigation. It is stated
that in letter dt. 29.11.2018 accused Subhash Chander claimed his
additional income as under:-
(a) accused Subhash Chander claimed that his sister in law
(Smt. Bimla W/o Dharmveer has given him
Rs.4,65,000/- in cash out of sale of 310 sq. yds. plot at
Village Ganagana to Smt. Beena Devi;
(b) accused Subhash Chander provided copy of a document
showing sale of 62 sq.yds. Lal dora land near
Cooperative Society to one Niranjan for Rs.3,10,000/-.
35. It is mentioned in the charge-sheet that above claim of
additional income made by accused Subhash Chander in letter dt.
CBI vs. Subhash Chander & Anr. (judgment) Page No. 20 Digitally signed by SHELENDER SHELENDER MALIK MALIK Date: 2025.05.14 17:37:15 +0530
29.11.2018, was found to be false as there was no legal document in
support of claim that his sister in law Bimla gave Rs.4,65,000/- in cash.
Moreover, accused Subhash Chander and Kavita had purchased house
No.1854, Sector 23, Sonipat, after 14 months but there was no such
reference regarding giving of such money in earlier letter of accused dated
12.01.2018. It is stated in the charge-sheet that claim of accused Subhash
Chander having sold any lal dora land for Rs.3,10,000/- was also found to
be not justified as he was not in possession of any original receipt or any
document. Even otherwise, accused failed to furnish any document
regarding possession of any such land.
36. Accused Subhash Chander in his another letter dated
28.5.2020 further claimed that his wife Smt. Kavita has been doing work
of sewing and knitting from 1998 till 2020 and has earned from that work
Rs.13,000/- to Rs.14,000/- per month. That amount was spent by her on
household expenditure and therefore asked for adding that amount while
calculating the income of Smt. Kavita. It is also mentioned in that letter dt.
28.05.2020 that seller of house No.1854, Sector 23 Sonipat namely Smt.
Kavita W/o Sukhbir, even after selling that house continued residing in
that house for 1.5 years and paid rent at the rent of Rs.5000/- per month.
As such Rs.1,80,000/- are to be added in the income.
37. It is stated that such claim of Smt. Kavita regarding income of
having earned any income by sewing and knitting for period of 1998 till
2020 was without any supportive document. It is stated that accused failed
to provide any document despite service of notice u/s 91. Moreover, there
is no such reference of any such source of income in ITR. Similarly, claim
CBI vs. Subhash Chander & Anr. (judgment) Page No. 21
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that seller of house No.1854, continued residing therein, even after sale of
that house, for rent of Rs.10,000/- per month was also found to be false
because during the search at the house of the accused on 17.09.2017 one
‘Ikrar Kiraya Nama’ dt. 5.6.2015 was recovered wherein, seller of the
house Smt. Kavita W/o Sukhbir agreed for rent for period of 11 months @
Rs.5000/- per month. Moreover, Mr. Sukhbir Dahiya husband of the seller
Smt. Kavita has stated in his statement that after the registry of the house
No. 1854, on 5.6.2015, he along with his wife and children stayed in that
house for 2 months and thereafter shifted to Delhi. He stated that he had
not paid any rent for those 2 months. Sukhbir Dahiya identified ‘Ikrar
Kiraya Nama’ dt. 5.6.2015 but stated that it was never implemented.
38. Thus, on the basis of investigation and calculation of
Statement A, B, C & D, following amount of disproportionate assets was
calculated:
S.No. Description of Expenditure Amount
1 Statement A: Assets at the beginning of check period Rs.1,94,557/-
2 Statement B: Assets at the end of check period Rs.1,19,77,554/-
3. Assets acquired during the check period (B-A) Rs.1,17,82,997/-
4 Statement C: Income during the check period Rs.37,44,062/-
5 Statement D: Expenditure during the check period Rs.91,43,666/-
6 Likely Savings (C-D) Rs.53,99,604/-
7 Disproportionate Assets, DA {(B-A)-(C-D)} Rs.1,71,82,601/-
8 DA percentage (DA/C X 100) 458.929%
39. Thus, charge-sheet was filed with the allegations that accused
amassed disproportionate assets of Rs.01,71,82,601/- (458.9%). Ld.
Predecessor of this Court vide order dated 01.12.2021, after examining the
material on judicial record ordered for framing of charge u/s 13(1)(e) r/w
CBI vs. Subhash Chander & Anr. (judgment) Page No. 22
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13(2) of PC Act against accused Subhash Chander and for offence u/s 109
IPC u/s 13(1)(e) r/w 13(2) of PC Act. On the same day, i.e., 1.12.2021,
charges were framed against accused persons, to which both the accused
persons pleaded not guilty to the Charge and claimed trial.
40. After framing of charge both the accused persons by their
statements recorded on 16.12.2021 admitted u/s 294 Cr.PC the
authenticity/genuineness of certain documents as per the list i.e. D-6, D-7,
D-8, D-9, D-21, D-27, D-29, D-34, D-36, D-42, D-48, D-49, D-67, D-68
and D-69. Further counsel for the accused on 04.08.2022 admitted
documents D-25/(i) and D-25((ii) as per Section 294 Cr.PC.
41. Prosecution in order to substantiate the case has examined 59
of witness, the details of which is being given herein below:
Witness Name of Witness Nature of Witness no. & name PW1 Dalbir Singh This witness has proved revenue report Ex.PW1/A,
Ex.PW1/B in respect of land in the name of Mahender
Singh (father of A-2 Kavita)
PW2 Sushil Kumar He is an independent witness, joined CBI proceedings
relating to search at the shop of M/s Helpline Dawa
Bazar
PW3 Harjeet Singh He is independent witness joined CBI proceedings
during the search the house of accused persons at
Sonepat and referred to search list Ex.PW3/A and
other documents recovered during the search
proceedings.
PW4 Rajbir Singh Dahiya He has proved report regarding jhar paidawar given by
Patwari, office Kanungo Ex.PW4/B & Ex.PW4/C
PW5 Suresh Tyagi This witness is from Panipat Institute of Engineering
and proved letter Ex.PW5/A regarding the fees paid in
respect of education of Pradeep (son of accused
CBI vs. Subhash Chander & Anr. (judgment) Page No. 23
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persons)
PW6 Manju Bala This witness proved ITRs of accused Kavita for
assessment year 2013-14, 2014-15, 2015-16, 2016-17
& 2017-18 as well as ITRs of Helpline Dawa Bazar of
assessment year 2017-18
PW7 Jasbir Singh This witness is also from Income Tax Department and
proved ITR of Pradeep (son of accused persons) for
assessment year 2015-16, 2016-17 and 2017-18
PW8 Lalit Kumar Sharma This witness is from Income Tax Department and
proved ITR of accused Subhash Chander for
assessment year 2010-11, 2013-14, 2014-15, 2015-16
and 2016-17.
PW9 Anil Kumar This witness has testified regarding taking of loan
from accused Subhash Chander
PW10 Krishan Kumar This witness is from Punjab National Bank and
Gupta provided statement of account, account opening form
of account no.0434000107660502 and
0434000100726278 of accused Subhash Chander and
Subhash Chander HUF respectively
PW11 Virender Deswal This witness has proved regarding loan of loan of
Rs.25 lakhs from Subhash Chander and his family and
later returning of the same with interest of Rs.30,000/-
PW12 Nitin Gupta This witness testified regarding letting of shop no.11/2
and 11/3, Yusuf Sarai Market to accused Kavita and
proved lease deeds Ex.PW12/B and Ex.PW12/D
PW13 Kanchan Billa This witness is from Union Bank of India and proved
statement of account of account no. 340601010050861
of M/s Helpline Dawa Bazar
PW14 Jitender Rana This witness is independent witness of proceedings
memo dated 01.11.2019 when IO recorded statement
of certain witnesses
PW15 Priyanka Dudi This witness is from HDFC Bank and proved letter
dated 25.09.2017 by which statement of account of
account and account opening form of account nos.
50200016394112 & 50100200437140 of M/s Helpline
Dawa Bazar were provided to IO
PW16 Ashish Goel This witness is Chartered Accountant and IO seized
from him complete set of audited balance sheet, profitCBI vs. Subhash Chander & Anr. (judgment) Page No. 24
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and loss account and other documents Ex.PW16/A
PW17 Ashok Gupta This witness testified that Hari Chand (father of
accused Subhash Chander) asked for bank entry of
Rs.25 lakhs through RTGS to do some business for his
son and Gaurav transferred the entry of Rs.25 lakhs in
one bank account provided by Hari Chand
PW18 Gaurav Gupta This witness also testified regarding transfer of bank
entry of Rs.25 lakhs in the account of Helpline Dawa
Bazar
PW19 Pawan Gupta This witness testified regarding transfer of Rs.25 lakhs
through RTGS in the account of Helpline Dawa Bazar,
regarding which he asked his nephew Gaurav Gupta to
transfer the said money
PW20 Harish Puri This witness is from M/s Computer Empire and
proved invoices regarding purchase of computer from
his shop Ex.PW20/1
PW21 Sanjay Puri This witness is from M/s Puri Traders and proved
invoice regarding purchase of cooler from his shop
PW22 Renu Gupta This witness is from LIC and proved letter dated
12.03.2018 from branch manager regarding status
report of policy no. 126712969 in the name of accused
Kavita, policy no. 126712945 in the name of Manisha
(daughter) and policy no. 117059034 in the name of
accused Subhash Chander
PW23 Manish Sharma This witness testified regarding arranging shop no.11/2
and 11/3, Yusuf Sarai Market for letting out on rent on
the request of Subhash Chander
PW24 Mahesh Nath This witness is from Ahujasons and proved invoice
regarding purchase of Pashmina shawl
PW25 Rajeev Sharma This witness is from R.K. Vision Electronic Shop and
proved retail invoice regarding to some item
purchased on cash payment made by accused Subhash
Chander
PW26 Kanihya Lal This witness is from Sangam Electronics who proved
Sachdeva retail invoice issued in the name of Helpline Dawa
Bazar which are Ex.PW26/1, Ex.PW26/2 as well as
invoices Ex.PW26/3 & Ex.PW26/4 in the name of
accused KavitaCBI vs. Subhash Chander & Anr. (judgment) Page No. 25
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PW27 Suraj Ratray This witness is from Arco Electronics Lajpat Nagar
proved invoices Ex.PW27/2 regarding articles
purchased from that shop
PW28 Prem Prakash This witness is from M/s Rama Krishna Jewelers Pvt.
Ltd and proved copy of estimate Ex.PW28/1 regarding
purchase of certain jewelry items
PW29 Amit Sharma This witness is from PP Jewelers and proved invoices
regarding purchase of jewelry invoices Ex.PW29/2
PW30 Anil Kumar This witness has proved certain J Forms Ex.PW30/1 to
Ex.PW30/8
PW31 Jaipal This witness has testified regarding tenancy at ground
floor of house no.722/30, Vikas Nagar, Sonepat which
was owned by accused Subhash Chander
PW32 Naveen Chahal This witness has testified regarding tenancy at first
floor of house no.722/30, Vikas Nagar, Sonepat which
was owned by accused Subhash Chander
PW33 Raj Krishan This witness has testified regarding giving of Rs.9
lakhs in cash in April/May 2015 to accused Kavita for
purchase of house
PW34 Pradeep Kumar This witness has proved J Forms Ex.PW30/2 to
Ex.PW30/8
PW35 Mahinder Singh This witness is father of accused Kavita and testified
to have given financial help of Rs.15 lakhs in cash
PW36 Rohtash This witness stated to have given financial help of
Rs.10 lakhs on the asking of Hari Chand and giving
money in cash for purchase of house
PW37 Bijender This witness stated to have given financial help of
Rs.10 lakhs in cash on the asking of A-1 Subhash
Chander and A-2 Kavita to help them for purchase of
house no.1854, Sector 23, Sonepat
PW38 Randheer Singh This witness is brother of accused Subhash Chander
who also testified regarding giving of financial help of
Rs.7 lakhs in cash on the asking of accused Subhash
Chander
PW39 Vikram Singh This witness is brother of accused Subhash Chander
who also testified regarding giving of financial help of
Rs.5 lakhs in cash on the asking of accused SubhashCBI vs. Subhash Chander & Anr. (judgment) Page No. 26
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Chander
PW40 Rakesh Kumar This is independent witness regarding search
proceedings, search list is Ex.PW31/2
PW41 Madan Mohan This is independent witness regarding search list of
Ex.PW31/2
PW42 Sushil Kumar This is police witness from Haryana Police and proved
letter dated 16.03.2018 Ex.PW42/1 vide which status
report regarding FIR No.0138 dated 15.02.2018 was
given as well as regarding FIR No.0651 Mark 42/B at
PS Sonepat City
PW43 Saurabh Kapoor This witness is from Gen Next Traders and proved
invoices Ex.PW43/A regarding purchase of semi
automatic washing machine in the name of accused
Kavita who stated to have paid in cash
PW44 P.Arivazhagn This witness is from Drug Control Department and
proved letter dated 09.04.2018 Ex.PW44/1 regarding
copies of license in respect of Helpline Dawa Bazar
PW45 Dinesh Kumar This witness is from Parsvnath Developers Limited
Sharma and proved providing of letter dated 22.11.2017 to
CBI vide which record of that company regarding
issuance of receipt dated 25.06.2013 has been proved
PW46 Shyam Singh This witness is from Noble Travels and proved
regarding air ticket and bill seized vide memo
Ex.PW46/1 which was air ticket and bill was in the
name of Pradeep (son of accused persons)
PW47 Preet Pal Saini This witness is also from Noble Travels and stated to
have provided documents of flight ticket by letter
Ex.PW46/2 to CBI.
PW48 Ashish Jain This witness is also from Parsvnath Developers
Limited and provided documents regarding booking of
a commercial shop in the name of accused Kavita in
Parsvnath City Centre, Sonepat and documents are
Mark PW48/A and letter is Ex.PW45/1
PW49 Naresh Kumar This witness has been Patwari in respect of area of
village Gangana and proved report Ex.PW4/B
prepared by him and also proved khasra girdwari Mark
PW49/A
PW50 Naresh Pal Singh This witness is from Rishikul Vidyapeeth Sonepat andCBI vs. Subhash Chander & Anr. (judgment) Page No. 27
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proved fee certificate of Manisha and Pradeep (both
children of accused Subhash Chander) regarding their
studies in that school which is Ex.PW50/A (colly.)
PW51 Deepanshu Joshi This witness is from Bank of Baroda and proved copy
of account opening form in the name of Kavita w/o
Sukhbir Singh as well as statement of account which is
Ex.PW51/A
PW52 Ranjoo Mann This witness is from Delhi Public School Sonepat and
proved fees received by the school and studies of
Ms.Manisha d/o Subhash Chander. Letter along with
fee receipts are Ex.PW50/A
PW53 Sukhbir Singh This witness is husband of Kavita from whom accused
Kavita had purchased plot no.1854, Sector 23 Sonepat
and proved ikrarnama Ex.PW53/A, receipt
Ex.PW53/B, sale deed Ex.PW53/C as well as
kirayanama already Ex.PW3/E
PW54 Sombir Singh This witness is from Sub Registrar Office V-A and
proved registered lease deeds already Ex.PW12/B and
Ex.PW12/C and stated to have provided certified copy
of the same with letter Ex.PW54/1
PW55 Sophia Middha This witness is from LIC Housing Finance Limited
and provided information vide letter dated 25.4.2018
in respect of housing construction loan account
no.10415009490 in the name of accused Subhash
Chander. Letter is Ex.PW55/1, statement of account
along with certificate u/s 65B of Evidence Act is
Ex.PW55/2
PW56 Murali Rambha He is Branch Head of ACB CBI and proved sanction
for prosecution against accused Subhash Chander
which is Ex.PW56/B
PW57 Dharminder Prasad This witness is Inspector from Income Tax Department
Bamola
PW58 Inspector Saminder He is the IO of the CBI who investigated the matter
Singh
PW59 Vijay Verma This witness is Handwriting Expert from CFSL and
proved his report Ex.PW59/ACBI vs. Subhash Chander & Anr. (judgment) Page No. 28
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MALIK Date:
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42. Upon completion of prosecution evidence all the
incriminating evidence as come in evidence of the prosecution witnesses,
were put to the accused persons separately. Accused Subhash Chander
while admitting certain evidence and documents, being matter of record
and denying some of the evidence/ documents, has stated that none of the
PW has deposed against him except investigating officer who as per
accused conducted the investigation contrary to the provisions of law by
drawing inadmissible proceedings and adopting selective, pick and choose
method in conduct of investigation and drawing wrong inferences from the
documents. Accused stated that a false case has been registered against
him.
43. Similarly accused Kavita also while admitting most of the
documents/evidence being matter of record as well as has denied certain
other evidence and took the similar plea of having been falsely implicated
and stating that it is IO who conducted biased investigation against the
accused persons and adopting selective and pick and choose method only
to implicate the accused in the present case.
44. In defence both the accused persons have examined five
witnesses. DW-1 is Satbir Singh who is Sarpanch of village Gangana and
testified regarding leasing out panchayat land and testified regarding Patta
Register entries. DW-2 is Himanshu who is also Secretary of village
panchayat Gangana and testified regarding 11 acres of panchayat, given on
lease for agricultural activities. DW-3 is Dharampal who has also testified
that their land was leased out to Hari Chand son of Prithi Singh and proved
copy of jamabandi Ex.DW3/A. DW-4 is Deepak son of Bijender from
CBI vs. Subhash Chander & Anr. (judgment) Page No. 29
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Abhishek Memorial Hospital, Gohana and proved regarding death of one
Lachman Singh s/o Hari Chand, who was admitted in that hospital on
13.09.2019, death summary is Ex.DW4/A. DW-5 is Sundar son of Sita
Ram from Nagar Parishad Gohana who proved death certificate of Laxman
s/o Hari Chand Ex.DW5/A.
45. I have heard ld. PP for the CBI and Dr.Sushil Kumar Gupta,
ld. Counsel for both the accused persons and has also gone through the
written submissions filed on behalf of the accused persons.
46. Having heard rival submissions made at Bar and having
considered the entire material on judicial record, since accused has been
charged for offences u/s 13 (2) r/w 13 (i) (e) of P.C. Act It is appropriate to
understand the scope of offence u/s 13 (i) (e) of P.C. Act.Section 13(1)(e)
of P C Act 1988 reads as:
“13. Criminal misconduct by a public servant
-(1) A public servant is said to commit the offence of
criminal misconduct, –
(a) to (d) ……………
(e) if he or any person on his behalf, is in possession or
has, at any time during the period of his office, been in
possession for which the public servant cannot
satisfactorily account, of pecuniary resources or property
disproportionate to his known sources of income.
Explanation. – For the purposes of this section, “known
sources of income” means income received from any
lawful source and such receipt has been intimated in
accordance with the provisions of any law, rules or
orders for the time being applicable to a public servant.”
CBI vs. Subhash Chander & Anr. (judgment) Page No. 30 Digitally signed by SHELENDER SHELENDER MALIK MALIK Date: 2025.05.14 17:39:11 +0530
47. Section 13 of P.C. Act 1988 (before amendment of 2018)
deals with various situations when a public servant can be said to have
committed criminal misconduct. Clause (e) of sub-section (1) of the
Section is pressed into service against the accused. The same is applicable
when the public servant or any person on his behalf, is in possession or
has, at any time during the period of his office, been in possession, for
which the public servant cannot satisfactorily account pecuniary resources
or property disproportionate to his known sources of income. Clause (e) of
sub-section (1) of S. 13 corresponds to Cl. (e) of sub-section (1) of S. 5 of
the Prevention of Corruption Act, 1947 (referred to as ‘old Act’). Thus the
ingredients of offence under Section 13(1)(e) of P.C. Act, 1988 are :
(i) the prosecution must establish that the accused is a public
servant;
(ii) the nature and extent of the pecuniary resources or property
which were found in his possession;
(iii) it must be proved as to what were his known sources of
income i.e. known to the prosecution; and
(iv) it must prove, quite objectively, that such resources or
property found in possession of the accused were
disproportionate to his known sources of income.
48. Once the above ingredients are satisfactorily established, the
offence of criminal misconduct under Section 13(1)(e) of P.C. Act 1988 is
complete, unless the accused is able to account for such resources or
CBI vs. Subhash Chander & Anr. (judgment) Page No. 31
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property. In others words, only after the prosecution has proved the
required ingredients, the burden of satisfactorily accounting for the
possession of such resources or property shifts to the accused. Further, he
would be held to be guilty of such offence of criminal misconduct, if he
cannot satisfactorily account such disproportionate pecuniary resources or
property. The explanation to Section 13(1)(e) elucidates the words
“known sources of income” to mean income received from any lawful
source and that such receipt has been intimated in accordance with the
provisions of law, rules, orders for the time being applicable to a public
servant.
49. As per the explanation appended, the prosecution is relieved
of the burden of investigating into “source of income” of an accused to a
large extent, as it is stated in the explanation that “known sources of
income” mean income received from any lawful source, the receipt of
which has been intimated in accordance with the provisions of any law,
rules, orders for the time being applicable to a public servant. The
expression “known sources of income” refers to sources known to the
prosecution after thoroughly investigating the case. It is not, and cannot be
contended that “known sources of income” means sources known to the
accused. The prosecution cannot, in the very nature of things, be expected
to know the affairs of an accused person. Those will be matters “specially
within the knowledge” of the accused, within the meaning of S.106 of the
Indian Evidence Act, 1872 .
50. The phrase “known sources of income” in S.1 3(1)(e) (old S.
5(1)(e)) has the emphasis on the word “income.” It would be primary to
CBI vs. Subhash Chander & Anr. (judgment) Page No. 32
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observe that, qua the public servant, the income would be what is attached
to his office or post, commonly known as remuneration or salary. The term
“income” by itself is elastic and has a wide connotation. Whatever comes
in or is received is income. But, however wide the import and connotation
of the term “income,” it is incapable of being understood as meaning
receipt having no nexus to one’s labour, or expertise, or property, or
investment and having further a source which may or may not yield a
regular revenue. These essential characteristics are vital in understanding
the term “income.” Therefore, it can be said that, though “income” is
receipt in the hand of its recipient, every receipt does not partake into the
character of income. Qua a public servant, whatever return he gets of his
service, will be the primary item of his income. Other incomes, which can
conceivably are income qua the public servant, will be in the regular
receipt from (a) his property, or (b) his investment. A receipt from
windfall, or gains of graft, crime, or immoral secretions by persons prima
facie would not be receipt from the “known sources of income” of a public
servant.
51. The Legislature has consciously used the expression
“satisfactorily account.” The emphasis must be on the word “satisfactorily”
and the Legislature has, thus, deliberately cast a burden on the accused not
only to offer a plausible explanation as to how he came by his large
wealth, but also to satisfy the Court that his explanation was worthy or
acceptance. (Reference : State of Maharashtra v. Dnyaneshwar Laxman
Rao Wankhede (2009) 15 SCC 200; Vasant Rao Guhe v. State of Madhya
Pradesh AIR 2017 SC 3713).
CBI vs. Subhash Chander & Anr. (judgment) Page No. 33 Digitally signed by SHELENDER SHELENDER MALIK MALIK Date: 2025.05.14 17:40:02 +0530
52. In the light of above discussion of legal proposition for charge
u/s 13(1)(e) of P.C. Act, let us now discuss different disputed items under
Statement-B, Statement-C and Statement-D. Movable and immovable
assets as mentioned in Statement-A (assets before the check period) is
admitted.
Statement-B
(Immovable Property i.e. House No.1854, Sec. 23, Sonipat)
53. In the Statement-B i.e. movable and immovable assets of
accused persons at the end of check period, there is addition of one
property i.e. House No.1854, Sector 23, Sonipat, which according to the
prosecution was purchased by accused Smt.Kavita wife of Subhash
Chander vide sale deed dated 05.06.2015 and value of that property has
been assessed to be Rs.1,02,21,000/-. Purchase of such property in the
name of accused is not disputed however it is is alleged that during the
search original ikrarnama and biyana dated 12.05.2015, receipt of Rs.40
lakhs dated 12.05.2015 and original affidavit dated 05.10.2015 were
recovered to show that in fact the sale consideration of purchase of said
house was Rs.1,02,21,000/-, out of which the cash component was paid out
of ill gotten money of accused Subhash Chander. In the charge sheet the
defence/explanation given by the accused Subhash Chander by his letter
dated 12.01.2018 regarding receiving of financial help from his relatives
was stated to be not genuine and trustworthy. Therefore this property was
added in Statement-B with value of Rs.1,02,21,000/-.
Submissions CBI vs. Subhash Chander & Anr. (judgment) Page No. 34 Digitally signed by SHELENDER SHELENDER MALIK MALIK Date: 2025.05.14 17:40:11 +0530
54. On the above noted item/immovable property ld. PP for the CBI
submitted that it is not disputed by accused persons that said property was
purchased by Smt.Kavita wife of Subhash Chander. It is submitted that on
the date of purchase of that property accused Kavita had no sufficient
lawful resources for purchase of the same, moreover from the documents
recovered during the search it was also established that huge amount of
cash was paid towards the purchase of that property, it is submitted that
accused has not given any intimation regarding purchase of that property
to his department, nor there is any reference regarding taking of any
financial help/gift from the relatives either in the ITR of accused Subhash
Chander or of ITR of accused Kavita. Therefore it is submitted that it was
a benami property purchased by accused Subhash Chander in the name of
his wife, from the ill gotten money which has not been properly explained.
As such it is argued that said property has been added in the Statement-B.
55. Sh. Sushil Gupta, Advocate, ld. Counsel for accused persons
submitted that the above said house/immovable property was purchased by
Kavita from her resources and prosecution itself has examined PW33,
PW35, PW36, PW37, PW38 and PW39, who have deposed to have
contributed major chunk towards the payment of sale consideration for
purchase of that house. Remaining amount of sale consideration was paid
by Kavita from her own resources which she collected over the period of
time. It is argued that from the deposition of above said six witnesses
examined on behalf of the prosecution, there is explanation regarding sum
of Rs.77 lakhs. It is submitted that ld. PP for the CBI has not declared
those witnesses to be hostile and did not ask for the cross-examination, as
CBI vs. Subhash Chander & Anr. (judgment) Page No. 35
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such their deposition was even admitted by prosecution. It is submitted
that since evidence of these witnesses has been relied upon by the
prosecution, therefore prosecution has failed to discharge its initial burden
to prove that it was a benami property.
56. Ld. Counsel for the accused further argued that even
otherwise the concept of ‘check period’ in a case of disproportionate
assets, is applicable in respect of public servant only and not to private
person. In case of private person what is to be assessed is whether there is
sufficient source of income for acquiring assets in his/her possession. It is
submitted that above mentioned property cannot be considered to be
benami property because mere assertion to a property being benami is not
sufficient. It is submitted that burden of proving that a particular sale is
benami and registered owner is not the real owner, lies on the person
asserting it to be so. In other words, it is for prosecution to establish that
above mentioned property was benami property. It is submitted that
prosecution has failed to establish any connection of that property with
accused Subhash Chander. Counsel for the accused argued that ostensible
owner/registered owner is presumed to be lawful owner of the property,
having purchased the same from his lawful sources unless there is any
evidence to the contrary showed by prosecution. Reliance in this regard
has been placed on judgment of Apex Court in Jaydayal Poddar vs. Bibi
Hazra (1974) 1 SCC 3.
57. It is further argued that mere fact that ostensible owner had no
source of income, would also not lead to an automatic inference that
property in question was purchased from the income of a particular person.
CBI vs. Subhash Chander & Anr. (judgment) Page No. 36 Digitally signed by SHELENDER SHELENDER MALIK MALIK Date: 2025.05.14 17:40:27 +0530
It is submitted that there must be some evidence establishing link of public
servant i.e. accused Subhash Chander in purchase of the above mentioned
property. He submits that there is no such evidence to prove any
connection of accused Subhash Chander regarding purchase of that
property. Reliance in this regard has been placed on judgment of Apex
Court in Krishnanand vs. State of MP (1977) 1 SCC 816.
58. Having considered the submissions, before adverting into
evidence and facts, at the outset it is to be clarified the exact meaning and
import of ‘benami transaction’. Benami property refers to assets held by
one person (the benamidar) but financed and controlled by another (the
beneficial owner). Generally benami transactions are done to conceal the
true ownership of the assets, it is normally done to avoid legal obligations
such as Income Tax etc. As per Benami Transaction (Prohibition)
Amendment Act 2016, under Section 4(9) “benami transaction means –
“(A) A transaction or an arrangement :
(i) where a property is transferred or is held by a person
and the consideration for such property has been
provided or paid by another person and;
(ii) the property is held for the immediate or future benefit,
direct or indirect of the person who has provided the
consideration…”
59. Thus as per law benami transaction is not simply one when
registered owner of the property is not the actual owner. In accordance
with the law a transaction is considered to be benami for legal obligations
such as Income Tax etc. when the sale consideration etc. for a property has
been paid by someone else than the registered owner and he did so to
CBI vs. Subhash Chander & Anr. (judgment) Page No. 37
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conceal his wealth, and to take benefits future or immediate. In this case
no doubt one ingredient of benami transaction is there that it is alleged by
the prosecution that property no.1854, Sector 23, Sonipat purchased by
accused Kavita was though purchased in her name but the amount paid for
consideration was out of ill gotten money of accused Subhash Chander.
Therefore in the opinion of this court the transaction in question is not
strictly speaking a ‘benami transaction’. However this court accepts the
legal proposition laid down in the judgments relied upon by ld. Counsel for
the accused persons. However the point for consideration in this case, for
prosecution of criminal misconduct against accused Subhash Chander is
whether the above mentioned property was purchased by accused Kavita
from her own resources or the said property was purchased from the
money provided by accused Subhash Chander.
60. Thus this court is not suppose to determine any benami
transaction as concept of benami transaction as defined in the law is not
strictly applicable in respect of property in question. Real issue for
consideration is whether the funds paid for purchase of property no.1854,
Sector 23, Sonipat was arranged by accused Subhash Chander or by
accused Kavita from her own resources. Let us examine the facts and
circumstances in the light of legal proposition as discussed above.
61. In the present case during the search proceedings one bayana
agreement and receipt dated 12.05.2015 in respect of purchase of property
no.1854, Sector 23, Sonipat were found which according to prosecution
was signed by accused Kavita. That fact is not disputed and has also been
proved from FSL expert that signature on those documents are of Kavita.
CBI vs. Subhash Chander & Anr. (judgment) Page No. 38 Digitally signed by SHELENDER SHELENDER MALIK MALIK Date: 2025.05.14 17:40:44 +0530
During the course of arguments ld. counsel for accused has also admitted
regarding making of payment of part of sale consideration of total amount
of Rs.1,02,21,000/- in cash. Because as per sale deed Ex.P-8 (admitted
document) [D-21(i)] dated 05.06.2015. The sale consideration mentioned
in that document is Rs.97,20,000/- (Rs.5 lakhs given by way of cheque and
Rs.92,20,000/- given in cash as well as Rs.4,86,000/- stamp duty). Thus it
is not disputed that payment towards part of sale consideration has been
made in cash.
62. It is in this factual context prosecution has examined PW33
Raj Kishan who has deposed regarding giving of Rs.9 lakhs in cash in
April/May 2015, without any writing work to his niece Kavita wife of
Subhash by selling agriculture produce. PW35 is Mahender Singh (father
of accused Kavita) who has also deposed giving of Rs.15 lakhs in cash,
without any writing work. Similarly PW36 deposed giving of Rs.10 lakhs
in cash in 2015 without any writing work on asking of Hari Chand (father
of accused Subhash Chander). PW37 Bijender stated to have given Rs.10
lakhs in cash without any writing work to Kavita who is stated to be his
cousin. PW38 is Randhir Singh (brother of accused Subhash Chander)
stated to have given Rs.7 lakhs without any writing work. PW39 is
Vikram Singh who stated to have given Rs.5 lakhs in cash without any
document.
63. Ld. Counsel for the accused submits that above mentioned
witnesses though were examined as PW, however they have deposed in
favour of accused persons as these witnesses have given due explanation
regarding arranging of cash amount which was paid towards the part of
CBI vs. Subhash Chander & Anr. (judgment) Page No. 39
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sale consideration. It is submitted that these witnesses were not declared
hostile by the prosecution. It is submitted that there was no requirement
under the Income Tax law regarding cash transaction during year 2015,
because Section 269-ST of Income Tax Act which prohibits the transaction
in cash upto a limit, came only w.e.f. 01.04.2017.
64. Having examined the evidence, and more particularly
evidence of PW33, PW35, PW36, PW37, PW38 and PW39, no doubt
these witnesses have deposed regarding giving of financial help of
different amounts by them respectively, regarding purchase of house by
accused Subhash Chander and Kavita. These witnesses have common
aspect that they all have stated that they made financial help in cash and
regarding such giving of financial help no writing work was done.
However their evidence even if accepted on the face of it, do not establish
in the opinion of this court that accused Kavita had purchased property
no.1854, Sector 23, Sonipat from her own lawful sources of income for the
following reasons :
(i) Evidence of PW33, PW35, PW36, PW37, PW38 and PW39 even
if examined by prosecution only show that these witnesses stated
that they made the financial help of different amounts as they
have stated. No doubt during year 2015, there was no restriction
regarding mode of payment in cash as Section 269-ST came in
the Income Tax law only w.e.f. 01.04.2017. However there was
already a provision in the shape of Section 269-SS which came
in Income Tax Act form 01.06.2015. As per Section 269-SS no
person shall take or accept from any other person any loan orCBI vs. Subhash Chander & Anr. (judgment) Page No. 40
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deposit, otherwise than by account payee cheque or account
payee bank draft or use of electronic clearing system. Thus w.e.f.
June 2015 there was restriction even under Income Tax Act, for
making financial help in cash beyond a particular limit.
(ii) Even if it is assumed for the time being that the transactions as
deposed by above mentioned witnesses were not covered within
the restriction of Section 269-SS of I.T. Act, still their evidence is
unworthy of any reliance, firstly because they themselves have
admitted that no writing work was done regarding making
payment of loan/gift by them which is most unacceptable in law.
(iii) It be noted that even if the evidence of PW33, PW35, PW36,
PW37, PW38 and PW39, are taken into consideration for the
time being, even as per their deposition they have contributed
total amount of Rs.56 lakhs given by them in cash towards
financial help to accused Kavita or Subhash Chander, whereas as
per the sale deed dated 05.06.2015 out of total sale consideration
of that property, Rs.92,20,000/- was paid in cash. There is no
explanation as to how the remaining amount was paid and who
arranged the same. This rather create doubt as to the evidence of
above mentioned witnesses.
(iv) Evidence of PW33, PW35, PW36, PW37, PW38 and PW39 can
otherwise not be accepted because in their deposition, they have
not given any account as to where from they have secured such
money. No doubt some of these witnesses have stated that they
arranged the money by sale of their agriculture produce, however
CBI vs. Subhash Chander & Anr. (judgment) Page No. 41
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that in itself is not sufficient, firstly because no documentary
evidence regarding sale has been produced. Secondly, no
banking transaction regarding withdrawal of money has been
shown particularly in year 2015.
(v) Most important aspect regarding the evidence of PW33, PW35,
PW36, PW37, PW38 and PW39, is that accused Kavita was wife
of a public servant as her husband was working as Constable in
CBI. For any public servant, it is mandatory under the conduct
rules that in case of purchase of immovable property, either by
public servant himself or by his family members, there must be
disclosure regarding purchase of that property as well as
disclosure regarding source of money/funds for purchase of that
property. In this case admittedly there is no disclosure by
accused Subhash Chander regarding purchase of above
mentioned property in the name of his wife. More particularly
same has been purchased by taking financial help in cash from
above mentioned witnesses regarding which there was no writing
work.
(vi) Even if it is assumed that there was no restriction under I.T. Act
regarding transaction of such huge amount in cash or taking of
gift/ financial help in cash. Still accused Kavita being wife of
Subhash Chander who is a public servant, was legally bound to
disclose regarding purchase of an immovable property worth
Rs.1,02,21,000/- (inclusive of stamp duty), at any forum or
authority. In respect of purchase of this property accused personsCBI vs. Subhash Chander & Anr. (judgment) Page No. 42
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have not disclosed about the purchase of the same to any legal,
official authority etc. for no justifiable reason.
(vii) Important to note in this context that accused Kavita or Subhash
Chander have not appeared in the witness box in defence to
depose regarding the resources from where entire funds were
arranged for purchase of above mentioned property.
(viii) As per sale deed dated 15.06.2015 two cheques have been issued
by accused Kavita towards the payment of part of sale
consideration. One of the cheque is cheque no.026655 dated
30.05.2015 of Rs.3,00,000/- drawn on Punjab National Bank.
Perusal of D-24 (Ex.PW10/C) indicates that cheque no.026655
was in fact issued from account no.0434000100726278 which is
in the joint name of accused Subhash Chander and Kavita. There
is no reference regarding this bank account in the ITRs of either
of accused Kavita or accused Subhash Chander.
(ix) Another cheque number is 364647 dated 13.05.2015 of
Rs.2,00,000/- drawn on State Bank of India, is from account
no.33111613021 in the name of Smt.Kavita.
(x) When purchase of property with sale consideration of
Rs.1,02,21,000/- was not disputed, then obviously onus was on
accused persons to explain the sources of the same completely.
In this context if we go through the income tax returns of accused
Kavita which are collectively exhibited as E.xPW6/A. As per the
ITR of 2013-14 of accused Kavita her gross income has been
shown to be Rs.1,71,500/-, as per ITR of 2014-15 the gross
CBI vs. Subhash Chander & Anr. (judgment) Page No. 43
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income has been shown to be Rs.1,91,700/- and as per ITR of
2015-16 the aggregate income has been shown to be
Rs.4,30,000/- (out of which income from other sources has been
shown to be Rs.2,85,518/- and agriculture income as
Rs.1,45,000/-). From perusal of the ITRs of relevant years
before or after the execution of sale deed, it is evident that there
was no sufficient money available with accused Kavita for
payment of sale consideration.
(xi) There is a reference regarding payment of Rs.5,01,000/- towards
payment of stamp duty and registration expenses, which has been
paid in cash. There is no explanation as to how this amount was
arranged and who paid the same.
65. Thus for the reasons noted above, this Court concludes that
evidence of PW33, PW35, PW36, PW37, PW38 and PW39 is not worthy
of reliance. It be noted that in the present case accused themselves have
not disputed regarding purchase of property in the name of accused Kavita,
for the sale consideration of Rs.1,02,21,000/-, out of which Rs.92,20,000/-
of sale consideration was paid in cash beside Rs.5,01,000/- was also paid
in cash towards stamp duty and registration expenses. When the factum of
execution of sale deed with so much of cash amount is not disputed, it
means that initial onus stood discharged. Thereupon it was for accused
Kavita and Subhash Chander to “satisfactorily account” the source of the
above said amount completely. In the considered opinion of the Court
accused have failed to satisfactorily account for the same as is required
under the law.
CBI vs. Subhash Chander & Anr. (judgment) Page No. 44 Digitally signed by SHELENDER SHELENDER MALIK MALIK Date: 2025.05.14 17:41:45 +0530
66. This brings us to consider the judgments as relied upon by ld.
Counsel for accused persons. One judgment is of Supreme Court in
Jaydayal Poddar‘s case (supra), first of all it be noted that said judgment is
in civil case wherein there was a rival claim regarding ownership of a
property and one of the defendant claimed to be benamidar of that
property. In peculiar facts of that case it was laid down that onus of
proving that a particular sale of immovable property is benami or not,
always rest on one who asserts that fact. Without disputing the legal ratio
laid down in that case, such judgment however cannot be applied as a
precedent for present criminal case.
67. This court has already observed earlier that it is not to be
decided whether the above mentioned property was benami or not in strict
legal sense, rather question for consideration is whether the sale
consideration of cash amount was entirely paid by the registered owner or
by her public servant husband. This court has already given reasons that
Smt.Kavita could not give satisfactorily account of her resources by which
she claimed to have made the payment of sale consideration because
evidence of PW33, PW35 to PW39 cannot be believed, for the reasons that
transaction of making of payment in cash without any documentation
appears to be unworthy of belief. It be noted here that their evidence give
account for only sum of Rs.56 lakhs, whereas sale consideration in cash
paid is Rs.97,21,000/-. Both the accused persons have not appeared in the
witness box to give complete account regarding payment of sale
consideration.
CBI vs. Subhash Chander & Anr. (judgment) Page No. 45
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68. Another judgment relied upon by ld. Counsel for the accused
is Krishnanand vs. State of M.P. (supra), facts of that case were also
altogether different as in that case of disproportionate assets against the
accused, there was an issue with regard to sum of Rs.11,180/- lying in the
Allahabad Bank at safe deposit, in the name of one Shanti Devi, which
according to prosecution was benami property of accused. Hon’ble
Supreme Court after examining the evidence, held in para 26 that there
was sufficient evidence led by the accused to establish that the safe deposit
in the name of Shanti Devi (second wife of accused) was duly accounted
for and source of the money was also explained. It is in that context it was
held that it is not enough merely to create suspicion as court cannot
decided only on the basis of suspicion.
69. Ld. counsel for the accused further argued that mere fact that
ostensible owner has no source of income, would not lead to an inference
that property in question was purchased with the income of a particular
person. Reliance has been placed on K. Goverdhan vs. State of A.P. 2001
SCC OnLine AP 1540, wherein Andhra Pradesh High Court has held in
para 21 of the judgment that absence or any source of income to ostensible
owner merely would indicate that property might have been acquired with
the income, flowing from someone else. As to who that someone else is a
matter of evidence and proof.
70. The above said observation given by Hon’ble Andhra Pradesh
High Court was in actually peculiar circumstance of the case because in
that case issue was with regard to a house purchased in the name of
Narsingamma (mother of the accused), allegations were that there was no
CBI vs. Subhash Chander & Anr. (judgment) Page No. 46
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resources for the mother to purchase that property as it was alleged that
family properties were partition among the sons including accused, no
share was alloted to the mother Narsingamma under that partition deed.
However Hon’ble Andhra Pradesh High Court took note of evidence of
PW12 who stated that after formal partition eldest brother and their mother
were looking after those properties, when other brothers were away from
the place. Therefore it was noted that considering the circumstances and
practice in the rural area it is not surprising if mother managed the
properties and held the income derived from those properties.
71. Whereas in the present case there is no evidence at all led by
the accused persons to give the account of the resources by which the
payment of entire sale consideration was paid by the accused Kavita for
total sale consideration of Rs.1,02,21,000/- when her husband was sering
as Constable in CBI. No doubt court cannot venture into any conjecture or
surmises, nor suspicion can take the place of proof. However it be noted
that offence under Section 13(1)(e) of P.C. Act 1988 is not based on a
particular incidence of corruption or obtaining of bribe, this offence also
does not contemplate proof as to how and by which means public servant
amassed illegal money which was found to be disproportionate to his
known and legal source of income. Thus the offence under this Section is
not incident oriented rather explanation attached to Section 13(1)(e) put
equal burden on the accused to give satisfactory account of assets, which
were alleged to be disproportionate to his known sources of income. No
doubt in that process initial burden is undoubtedly on prosecution to prove
foundational facts. However upon discharge of initial burden onus shifts
CBI vs. Subhash Chander & Anr. (judgment) Page No. 47
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upon the accused. The expression ‘known source of income’ in the
Section has reference to the sources known to the prosecution, after
thorough investigation of the case. Prosecution cannot in every nature of
things, be expected to know the affairs of the accused persons. Those will
be matters specifically within the knowledge of the accused, within the
meaning of Section 106 of Evidence Act (Section 109 of Bharatiya
Sakshya Adhiniyam 2023).
72. More particularly in a situation like present case, where
purchase of property for Rs.1,02,21,000/- with so much of cash component
as noted above is not disputed by even accused persons, in that case it
would be taken by this court that foundational facts stand proved and
therefore it would be for accused to give account of resources by which
Smt.Kavita arranged a huge amount of Rs.1,02,21,000/- when her income
tax return for two years prior and two years after, show her income to be
around Rs.3 to 4 lakhs. This court has already discarded the evidence of
PW33 and PW35 to PW39.
73. In this context it is important to give reference of judgment of
Apex Court in State of Karnataka vs. Selvi J. Jayalalitha 2017 SC (Supp)
481 as relied upon by ld. PP for the CBI, wherein in para 175 to 180, Apex
Court has laid down that property in the name of income tax in itself
cannot be a ground to hold that it actually belong to such an assessee. It
was held that IT returns or orders passed on IT proceedings, would by
itself not establish income having been gained from lawful source as
contemplated in Explanation to Section 13(1)(e).
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74. In the present case also out of Rs.5 lakhs of sale consideration
given by way of cheque, cheque of Rs.3 lakhs has been paid by joint
account of accused Subhash Chander and Kavita and only cheque of Rs.2
lakhs has been issued by accused Kavita from her bank account of SBI.
Beside this, there is no explanation from accused Kavita regarding
arranging of resource of entire sale consideration of the property.
Therefore this court concludes that the property no. 1854, Sector 23,
Sonipat has not been purchased by Smt.Kavita from her own sources, in
the absence of giving any satisfactory account of the resources it would be
considered that resources were arranged by none else than her husband i.e.
accused Subhash Chander. Therefore for the reasons stated above the
property no.1854, Sector 23, Sonipat would be added into Statement-B
with value of Rs.1,02,21,000/-.
Movable Assets
75. In Statement-B under the heading of movable assets, there is
reference of five bank accounts, the closing balance of which has been
mentioned in the Table mentioned already in the above portion of the
judgment.
76. In this context it is argued by ld. Counsel for the accused that
CBI has issued a Circular no.31/2013 laying down the guidelines for
investigating officers while investigating DA case. That Circular further
lays down the manner in which bank statement of accused persons are to
be examined and analyzed. It is submitted that IO in this case had not
analyzed the bank statement of accused Subhash Chander, Kavita, his son
Pradeep as well as bank statement of accused Subhash Chander HUF and
CBI vs. Subhash Chander & Anr. (judgment) Page No. 49
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joint account of Subhash Chander and Kavita. It is argued that none of the
credit entries in these accounts have been taken into consideration,
whereas expenditures made from these accounts have been taken into
consideration and thereby causing prejudice to the accused.
77. Argument of ld. Counsel for the accused on the face of it
appears to be very convincing but not sustainable in view of the
requirement of law. For the sake of repetition it is being noted here that
for proof of Section 13(1)(e) of P.C. Act prosecution has to establish firstly
accused has particular value of assets, particular amount of income,
particular amount of expenditure. After deducting the expenditure from
income, balance would be considered to be amount of saving. Amount of
saving should be equal to the value of the asset. Therefore while
calculating the DA if the value of the asset at the end of the check period,
is found to be more than what public servant could save from his
legitimate source of income, it would be considered to be disproportionate
assets. Therefore investigating agency is not required to go take account
of each particular debit or credit entry in a bank account of the accused
persons for entire check period. The assessment would be done by
calculating the closure balance at the commencement of check period and
closure balance at the end of the check period.
78. The Circular no.31/2013 as relied upon has also been
misconstrued. It lays down that bank statement of accused persons should
be properly analyzed to trace hidden transactions and acquisition of new/
benami properties. Circular further mentions that credits into the bank
account should be compared with known source of income. Such
CBI vs. Subhash Chander & Anr. (judgment) Page No. 50
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comparison obviously cannot be done by each particular entry rather total
of credit entries and value of the assets would be examined, which has
been done in the present case. Even otherwise while investigating the case
for offence under Section 13(1)(e), accused is given an opportunity to
explain and account for the resources by which he could accumulate the
assets during the check period. Therefore if at any of the credit entry has
been left to be considered, same could have been highlighted and duly
explained to include the amount of that credit entry into the Statement-C
ie. income of the accused during the check period. After all investigation,
trial of offence under Section 13(1)(e) is based on accounts, if any of the
credit entry has been left to the notice of investigating agency or court,
accused can always lead evidence to prove such credit entry to show the
legitimate source of income. As such there is no possibility of any
prejudice to the accused.
79. In the present case while there has been no dispute regarding
the closing balance of different bank accounts mentioned under the head of
movable assets. Mere assertion of non-compliance of Circular No.31/2013
does not add anything to the income or lawful resources of the accused.
Thus the closing balance of different bank accounts are also taken in the
Statement-B when no evidence to the contrary has been led on behalf of
the accused.
Statement-C
(Income during check period)
CBI vs. Subhash Chander & Anr. (judgment) Page No. 51
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80. Let us examine each of the entry of the Table as referred to in
para 17.13 of the charge sheet and has already been reproduced in the
earlier portion of the judgment.
Entry No.1 (Salary of the accused Subhash Chander)
81. On the basis of evidence/documents collected during the
investigation, as per prosecution the net salary of accused Subhash
Chander for the check period is Rs.21,22,451/-.
82. However in this regard it is argued that on the basis of credit
entries in the bank statement of accused Subhash Chander, the salary of
Subhash Chander comes to be Rs.23,55,692/-.
83. Having considered the submissions, it be noted that accused
Subhash Chander has not appeared in the witness box, nor has led any
evidence regarding any particular entry of his bank statement which has
not been taken into consideration by the prosecution. This fact has also not
been asserted by the accused even in his statement u/s 313 Cr.PC. Mere
assertion in Final Arguments that bank account reveals the salary income
of the accused Subhash Chander to be Rs.23,55,692/- is not sufficient.
Therefore this court on the basis of admitted documents by the accused
concludes the salary income of the accused Subhash Chander to be
Rs.21,22,451/-.
Entry No.2 (Interest from the loan)
84. This entry as per prosecution case is Rs.3,000/- as in the
charge sheet it is stated that during search a receipt dated 07.12.2013 was
recovered regarding loan of Rs.25 lakhs given by accused Subhash
Chander to Virender Deswal (PW11). Virender Deswal (PW11) in his
CBI vs. Subhash Chander & Anr. (judgment) Page No. 52
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deposition has stated that he wanted to purchase a shop, and therefore he
borrowed sum of Rs.25 lakhs in cash from Subhash Chadner and his
family. PW11 says that after 15/20 days he returned back the amount in
cash along with Rs.30,000/- towards interest.
85. In the charge sheet as per prosecution it is stated that the
amount of interest of Rs.30,000/- would be divided among the family of
accused Subhash Chander because Subhash Chander in his letter dated
03.08.2018 stated that the loan amount of Rs.25 lakhs was 90% pool-in by
resources of his brothers. Therefore the contribution of Subhash Chander
was 10% of loan amount and accordingly 10% of interest income i.e.
Rs.3,000/- was added into the Statement-C.
86. It is argued by ld. Counsel for the accused that entire amount
of Rs.30,000/- should have been added in the income of the accused.
However this court does not agree with such submission because as per
letter dated 03.08.2018 when accused Subhash himself admitted that 90%
of loan amount was arranged by his brothers. In such case accused would
be entitled to only 10% of the interest income and therefore the interest
income of Rs.3,000/- has been rightly added.
Entry No.3 (Rental income in respect of GF of H.No.722/30, Vikas Nagar)
87. As per prosecution during search one Ikrarnama/kirayanama
dated 10.01.2017 was recovered showing rent @ Rs.5,000/- per month in
respect of tenancy at Ground Floor of 722/30, Vikas Nagar, Sonipat from
01.01.2017 to 31.03.2017. It is stated that in view of statement given by
the tenant Jaipal u/s 161 Cr.PC, rental income of Rs.10,000/- has been
added at entry no.3 of Statement-C.
CBI vs. Subhash Chander & Anr. (judgment) Page No. 53
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88. Ld. Counsel for the accused has submitted that lessee Jaipal
has appeared in the witness box as PW31 and has deposed that he had
taken the above said house on rent from July 2016 @ Rs.8,000/- per month
till December 2016 and from January 2017 he paid rent @ Rs.5,000/- as he
surrendered one room. As such according to defence the rental income
under this heading ought to have been Rs.63,000/- (Rs.8,000 x 6 months +
Rs.5,000 x 3 months).
89. Having examined entire evidence of PW31, no doubt in his
examination in chief PW31 stated that he is working as conductor in
Haryana Roadways and has been residing in house no.722/30, Vikas Nagar
owned by accused Subhash Chander. PW31 states that he took that house
on rent in July 2016 @ Rs.8,000/- per month, later however surrendered
one room and then started paying rent @ Rs.5,000/- from January 2017.
Since PW31 has resiled from his previous statement given to CBI, he was
declared hostile and cross examined by ld. PP for the CBI. In cross-
examination by ld. PP, PW31 admitted that he told CBI that he took the
above mentioned house of the accused on rent from January 2017
temporarily with rent @ Rs.5,000/-per month and paid Rs.10,000/-
towards the rent. PW31 further admits that there is no rent receipt of
Rs.8,000/-, he further admits that he has no documentary evidence to show
that he made the payment of Rs.8,000/- per month as a rent to Subhash
Chander. PW31 also admits that he has never intimated to his department
regarding payment of rent @ Rs.8,000/- per month nor the same has been
shown in its ITR. PW31 went on to admit in his cross-examination that
he had not intimated to his department regarding his residential address to
CBI vs. Subhash Chander & Anr. (judgment) Page No. 54
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be above mentioned house of the accused which he claimed to have
occupied since July 2016. PW31 further admits that he has no
documentary evidence to show that he occupied the said house since July
2016.
90. Evidence of PW31 regarding occupying the relevant portion
of house of the accused since July 2016 with rent @ Rs.8,000/- till January
2017, does not inspire confidence firstly because such oral deposition of
PW31 is against his previous statement. As per D-3 Ex.PW31/2, when
search was conducted at house no.722/30, Vikas Nagar, Sonipat, during the
search this tenant Jaipal was found present and gave statement before the
IO on 17.09.2017 itself that he is tenant in ground floor of that house on
the rent of Rs.5,000/- per month. Beside this he gave statement u/s 161
Cr.PC during the investigation. Moreover rent agreement Ex.PW31/1 has
also been admitted by PW31 which is D-46 provided by him during the
investigation. As per that rent agreement rate of rent is also mentioned to
be Rs.5,000/- w.e.f. 10.01.2017. Thus when witness PW31 admits that
there is no documentary evidence of him having paid rent @ Rs.8,000/-
per month from July 2016 and no evidence of him occupying ground floor
of that property in July 2016 onwards. The content of document
Ex.PW31/1 would be preferred to oral evidence of PW31 which is
otherwise no believable for the reasons as noted above. Since it has come
that tenancy started from 10.01.2017 and in this case check period ends on
31.03.2017, therefore this court would take the rent @ Rs.5,000/- per
month in view of Ex.PW31/1 and would add Rs.15,000/- into the income
of the accused.
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Entry No.4 (rental income in respect of FF of H.No.722/30, Vikas Nagar)
91. In Statement-C at entry no.4 prosecution has given rental
income received from Sandeep Kumar in respect of First Floor of House
No.722/30, Vikas Nagar for rent @ Rs.5,000/- for period of December
2013 to December 2016. As such rental income of Rs.1,80,000/- has been
added. Although it came in the investigation that accused Subhash
Chander claimed rental income of Rs.4,16,000/- in respect of first floor of
the said house by claiming the period of tenancy from 01.04.2012 to
August 2016. Tenant Sandeep Kumar was examined who stated that he
took that floor on rent at the rate of Rs.8,000/- per month for period March
2009 to August 2016 but no rent agreement was produced. Therefore IO
calculated the rate of rent to be Rs.5,000/- per month on the basis of
tenancy of ground floor of the same house and assessed the rental income
to be Rs.1,80,000/-.
92. It is matter of record that tenant Sandeep Kumar in respect of
first floor of the above said house, had given the statement during
investigation however could not be examined during the trial as said
Sandeep Kumar (tenant) had expired.
93. Ld. Counsel for the accused submits that the rental income of
Rs.1,80,000/- as calculated by prosecution is completely incorrect. It is
submitted that witness Sandeep in his statement u/s 161 Cr.PC specifically
stated that he took first floor of house no.722/30, Vikas Nagar, Sonipat on
rent in March 2009 till August 2016. It is argued that said witness in his
statement also stated that he paid Rs.2,84,000/- as rent for period from
March 2009 to 31.03.2012 and Rs.4,16,000/- as rent for period from
CBI vs. Subhash Chander & Anr. (judgment) Page No. 56
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01.04.2012 to August 2016. As such it is argued that sum of Rs.4,16,000/-
(relevant for check period) should have been added as rental income.
94. Having considered the submissions, first of all it be noted that
there is no evidence at all on the record regarding proof of tenancy of
period from March 2009 till August 2016 as unfortunately tenant Sandeep
Kumar had expired before his evidence could be recorded in trial. As per
prosecution, there is no documentary proof of tenancy of seven long years
as there was no rent agreement or any other document proving payment of
rent etc.
95. In such peculiar circumstances no evidence has come on
record for proving the tenancy, no documentary evidence has also been
placed on record. In the absence of evidence on the record, mere statement
u/s 161 Cr.PC of a witness who has already expired cannot be made basis
for coming to any conclusion. Important in this context to note that even
defence who if at all was interested for proving of rental income, could
have also lead any evidence in defence to prove that aspect. None of the
accused persons has led any evidence on this aspect.
96. Argument of ld. Counsel for the accused that since it came in
161 Cr.PC statement of witness who has expired to the effect that he was
tenant from March 2009 to 2012 and paid Rs.4,16,000/- therefore income
of Rs.4,1,6,000/- be added in Statement-C. This court finds such
submissions to be not sustainable in law because conclusion cannot be
drawn only on the basis of 161 CrPC statement.
97. Having so concluded since prosecution itself has admitted the
rate of rent to be Rs.1,80,000/- in charge sheet, therefore this court still
CBI vs. Subhash Chander & Anr. (judgment) Page No. 57
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give benefit of such amount to be added in the income in view of the
admitted position by prosecution, despite there being no evidence.
Entry No.5 (Agriculture income of accused Subhash Chander)
98. At entry no.5 of Statement-C prosecution has shown income
of Rs.8,20,922/- as an agriculture income, on the ground that during
investigation accused Subhash Chander claimed his agriculture income on
the basis of J Forms/ITRs. It also came in the investigation that a total
agriculture land of 21 acres has been in the name of father of accused.
Said agricultural land remained undivided among the accused and his
brothers. IO collected report of Jhad Paidawar (calculation of agriculture
produce) of check period from revenue authorities, which came out to be
Rs.57,46,451/-. Therefore giving 1/7th share of said income, Rs.8,20,922/-
has been added in the Statement-C.
99. Counsel for the accused submits that there is no dispute
regarding the amount of agricultural income as shown at entry no.5,
however it is argued that CBI did not include income accrued to accused
Subhash Chander, on account of agricultural land taken on lease as
deposed by DW1 and DW2 as well as DW3. It is argued that in view of
the evidence of DW1 to DW3, income accrued to the accused by
agriculture activity on land taken on lease, ought to have also been added.
100. Having considered such submissions, now once the
agriculture income as assessed by the prosecution to be Rs.8,20,922/- has
not been disputed by defence, this court need not to go into discuss the
evidence led by prosecution for coming to the calculation of that amount.
Now so far as submissions made on behalf of the accused regarding
CBI vs. Subhash Chander & Anr. (judgment) Page No. 58
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evidence of DW1 to DW3, DW1 is Satbir Singh who is stated to be
Sarpanch of Village Gangana, District Sonipath, has testified that there is
panchayat land of 11 acres in village Gangana, which is to be leased out,
for earning revenue. DW1 testifies that such panchayat land is leased out
by way of auction as whichever bidder makes a higher bid, land is leased
out to him for agriculture activity. DW1 went on to testify on the basis of
‘patta register’ that bidding process carried out on 06.06.2005, 07.05.2007,
16.05.2009, 17.05.2011, 28.05.2012, village panchayat land was leased out
to Hari Chand s/o Prithi Singh (father of accused Subhash Chander),
thereafter on 12.05.2018 also the village panchayat land was leased out to
Randhir s/o Hari Chand (brother of accused Subhash Chander). Relevant
entry of patta register are Ex.DW1/A.
101. Having considered such evidence, this evidence only establish
that panchayat land was leased out to the family of the accused i.e. Hari
Chand (father) for different years as noted above. DW1 in cross-
examination admits that he was not Sarpanch during the period from 2017
to 2021 of village Gangana. He further admits that the patta register does
not mention whether the bidding amount has been deposited in the village
panchayat or not. Patta register only establish that in the bidding process
of relevant dates, panchayat land was leased out to father, brother of
accused. But it does not establish that after it was leased out, such
panchayat land was used for agricultural activities or not. Best proof for
panchayat land being used for agricultural activities by family of the
accused could be documents of revenue department i.e. Khasra Girdwari,
jamabandi etc. DW1 has admitted in his cross-examination that from patta
CBI vs. Subhash Chander & Anr. (judgment) Page No. 59
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register one cannot say whether agricultural activities were actually carried
out on panchayat land or not.
102. Similarly DW2 Himanshu who has been Panchayat Secretary
of Mundhala Block, in which village Gangana also falls. DW2 also
testifies regarding patta register and bidding of different dates regarding
leasing out of panchayat land in favour of Hari Chand. DW2 in his cross-
examination admits that patta register brought by him does not establish
that bidding amount was actually deposited or not. DW2 further admits in
cross-examination that in case panchayat land is leased out for agricultural
activity, entry in this regard would be made in jamabandi. DW2 admits
that patta register does not establish whether agricultural activities were
actually carried out during the relevant years or not.
103. Thus taking into consideration entire evidence of DW1 and
DW2 it can be concluded that their evidence only establish that panchayat
land was leased out for relevant years to father of the accused for
agricultural activities. However DW1 and DW2 could not establish that
panchayat land was actually used for agricultural activities or not for each
of the year as noted above. Thus evidence of DW1 and DW2 does not lead
this court to any logical conclusion regarding any additional agricultural
income to family of accused Subhash Chander, when no revenue
documents in this regard have been proved to establish that for relevant
years the panchayat land/shamnat day was being used by family of accused
Subhash Chander for agricultural activities.
104. Similarly if we examine the evidence of DW3 Dharam Pal
who testified that he resides in village Gangana and states that he and his
CBI vs. Subhash Chander & Anr. (judgment) Page No. 60
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brother are recorded owners of 05 acres of land each in the village. DW3
says that he and his brother have not been carrying out agricultural
activities since 1990 on their respective piece of land and during year from
2005 till 2019, he and his brother leased out their agricultural land to Hari
Chand s/o Prithi Singh (Father of accused Subhash Chander) for
agricultural activities. DW3 further says that Hari Chand had seven
children and they have a joint family. DW3 further refers to a copy of
jamabandi of 2006-07 and of 2021-22 which is Ex.DW3/A (colly.).
105. Evidence of DW3 can also not be relied upon firstly because
DW3 admits in his cross-examination that he has no documentary
evidence to show that he and his brother have leased out their land to Hari
Chand for year 2005 to 2019. DW3 states that he received lease amount in
cash and also admits that he has bank account since 2005. This witness
has not proved any income earned by leasing out their land. DW3 says
that he had never gone to the CBI official to inform regarding leasing out
by him and his brother their agricultural land to the family of accused
Subhash Chander. DW3 further admits that jamabandi Ex.DW3/A
mentions regarding the land in question being ‘khud kasht’, which means
that land was under cultivation of owner himself.
106. Thus when the revenue record proved by DW3 i.e. Ex.DW3/A
itself show that the land in the name of witness and his brother was under
their own cultivation, his evidence regarding leasing out that land to the
family of accused Subhash Chander has been falsified. Even otherwise
there is no evidence at all regarding leasing out of land of DW3 and of his
brother to family of accused Subhash Chander for such a long period ofCBI vs. Subhash Chander & Anr. (judgment) Page No. 61
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time of year 2005 to 2019. Thus for the reasons stated above evidence of
DW3 can also not be believed or relied upon. As such it can safely be
concluded that evidence of DW1 ot D3 do not proved any additional
agricultural income to accused Subhash Chander. Consequently the
income of Rs.8,20,922/- is added towards the agricultural income.
Entry No.6 (Income of accused Kavita)
107. Prosecution under entry no.6 has mentioned income of
accused Kavita during the check period of Rs.3,75,000/- on the basis of
ITR. It is mentioned in para 17.21 of the charge sheet that father of
accused Kavita Sh.Mahender is recorded owner of 1.5 acre of agriculture
land. As per prosecution the total income from all sources to Mahender
Singh did not exceed Rs.15 lakhs, during check period of 01.04.2012 to
31.03.2017. It is further mentioned that Mahender Singh has two sons and
two daughters including accused Kavita. Mahender Singh in his statement
has stated that he has helped his daughter Kavita as and when needed but
she does not hold any share in the agriculture income. As such sum of
Rs.3,75,000/- has been added in the Statement-C towards the income of
accused Kavita from other sources.
108. It is mentioned that accused Kavita has claimed agriculture
income of Rs.7,91,754/- in her ITRs on the basis of four J Forms.
However that income has not been taken into consideration as there was no
evidence showing that accused Kavita was owner of any agricultural land,
in her individual capacity or has been involved in agricultural activities or
selling of agriculture produce.
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109. On entry no.6, ld. Counsel for the accused has submitted that
the prosecution has inherently committed error by assessing income of
Rs.15 lakhs for entire check period of 01.4.2012 to 31.03.2017 whereas as
per D-19 (i), Rs.15 lakhs has been mentioned by the revenue authority to
be annual income of Sh.Mahender Singh earned from his agricultural land.
As such it is argued that income of Mahender Singh for entire check period
ought to be taken as Rs.75 lakhs instead of Rs.15 lakhs. It is submitted
that PW1 Dalbir Singh in his cross-examination has also admitted that
Rs.15 lakhs was mentioned to be annual income of Mahender Singh.
110. Having considered the evidence, more particularly PW1
Dalbir Singh who has proved reply dated 31.10.2019 [D-19(i)] of Tehsildar
Gannaur, regarding agricultural income of Mahender Singh (father of
accused Kavita), this witness in cross examination has admitted that in that
reply sum of Rs.15 lakhs as agriculture income was an annual income of
Mahender Singh. Document D-19(i) Ex.PW1/B also mentions Rs.15 lakhs
income as annual and not in respect of entire check period. Although the
IO in his letter asked for income for entire check period.
111. Be that as it may considering the evidence on the face of it
and more particularly Ex.PW1/B, it is proved that figure of Rs.15 lakhs as
come in that report was annual income of Mahender Singh. In such
circumstance the income for entire check period of Mahender Singh would
be calculated to be Rs.75 lakhs. Since it is not disputed that Mahender
Singh has two sons and two daughters. Though there may not be any
evidence showing that Mahender Singh has been sharing his agricultural
income with his married daughter. Mahender Singh has appeared as
CBI vs. Subhash Chander & Anr. (judgment) Page No. 63
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MALIK Date:
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PW35, has also not stated so in this regard. But taking the legal position
that daughters also have the equal share in the assets of their parents even
after marriage, therefore this court concludes that 1/5th share of Rs.75
lakhs of income during check period of Mahender Singh, would be
calculated towards the income of accused Kavita derived from her parental
family, in the same manner as Subhash Chander has derived from his
father. As such the income of accused Kavita under this count is
calculated to be Rs.15 lakhs. Therefore the total income of Kavita under
Statement-C wouuld come out to be Rs.18,75,000/- (Rs.15 lakhs + Rs.3.75
lakhs) (from other sources as per ITR).
Entry No.7, 8 and 9
112. Entry no.7 of Rs.71,447/- (interest income from saving
account), entry no.8 of Rs.71,663/- (Salary income of Pradeep from
Helpline Dawa Bazar) and entry no. 9 of Rs.89,579/- (salary income of
Kavita from Helpline Dawa Bazar) as mentioned in Table of Statement-C,
has not been disputed by defence.
113. Thus the total income assessed under Statement-C would
come out to be Rs.52,49,062/- (Rs.21,22,451 + Rs.3,000 + Rs.15,000 +
Rs.1,80,000 + Rs.8,20,922 + Rs.18,75,000 + Rs. 71,447 + Rs.71,663 +
Rs..89,579).
Statement-D
(Expenditure during check period)
Entry No.1, 2 and 3
CBI vs. Subhash Chander & Anr. (judgment) Page No. 64
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114. Entry no.1 of Rs.54,400/-, entry no.2 of Rs.22,000/- for
purchase of Sony accessories, entry no.3 of Rs.27,000/- for purchase of
Pashmina shawl from Ahujasons is not disputed.
Entry No.4 (Purchase of computer)
115. In Statement-D expenses regarding purchase of a computer of
Rs.69,000/- has been shown vide invoice no.205-007283 dated
09.03.2016. It is mentioned in the charge sheet that during the search at
the premises of the accused, above mentioned invoice of the computer was
recovered.
116. It is argued by ld. Counsel for the accused that since the
computer was purchased in the name of M/s Helpline Dawa Bazar, which
is a separate legal entity and has being maintaining separate books of
account, therefore expenses for purchase of Rs.69,000/- ought not to have
been added in the expenditure in the name of accused, for the purpose of
calculating DA.
117. Having considered such submissions, it be noted that it has
already come that Helpline Dawa Bazar was initially constituted under a
partnership deed dated 01.04.2016, later dissolved on 01.05.2017 and
converted into a proprietorship firm of accused Smt.Kavita. A partnership
firm is not a separate legal entity. Identity of partnership or proprietorship
firm is only for the purpose of Income tax, Sales tax purposes. If any
expenses have been incurred for purchase of computer or other accessories
etc., same shall be added to the expenditure of proprietor/ partner of the
firm who constituted such firm. Since the expenditure are from the pocket
CBI vs. Subhash Chander & Anr. (judgment) Page No. 65
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of accused Kavita or Subhash Chander, therefore same amount of
Rs.69,000/- would be added in Statement-D.
Entry No.5
118. Entry no.5 regarding purchase of washing machine vide
invoice dated 06.06.2013 of Gennext Traders of Rs.9,500/- is admitted.
Entry No.6
119. Entry no.6 in Statement-D is regarding cash memos of total
amount of Rs.2,27,000/- from PP Jewelers regarding purchase of jewelery.
These memos were also recovered during the search at the house of the
accused persons. For proof of these memos, PW29 Amit Sharma has been
examined who proved the invoices at page no.3, 4, 5 and 6 of D-50 are
Ex.PW29/2 and production cum seizure memo and certain other invoices
are Ex.PW29/1 which are same.
120. It is argued by ld. Counsel for the accused that expenses under
the above said memos regarding purchase of jewelry, cannot be added in
the expenses of accused persons, firstly because the jewelry articles
mentioned in those bills, have not been recovered from the premises of the
accused. Secondly, the jewelry as recovered during the search was such
which was purchased prior to check period except one golden lady ring. It
is submitted that PW58 IO Saminder Singh in his cross-examination
admitted that he had not compared that whether the jewelry actually
recovered from the house of the accused correlate with the jewelry as
mentioned in the invoices above. Moreover PW58 admits that he had not
verified the person from whom the payment through HDFC credit card
was made.
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121. Having considered the submissions, even if jewelry bill
annexed with Ex.PW29/1 or jewelry bill Ex.PW29/2 are taken into
consideration, there is no evidence regarding recovery of jewelry articles
regarding which these bills were found from the premises of the accused.
These bills are otherwise not connected with the accused because payment
in respect of certain bills is in cash and certain bills is paid through credit
card of HDFC. IO has admitted that he has not verified if the credit card
of HDFC was of accused or of someone else. IO has further admitted that
he has not correlated the jewelry articles recovered with these bills. In
such situation mere recovery of bills would not attributed the expenses to
the accused persons when the concerned articles were not correlated and
found. Consequently the expenses under the above bills of Rs.2,27,000/-
would not be added in Statement-D.
Entry No.7 (Purchase of cooler)
122. Entry with regard to purchase of cooler by bill no.15135 of
Rs.18,000/- has not been disputed by the accused persons.
Entry No.8 (purchase of jewelry from Rama Krishna Jewelers)
123. During the search one estimate dated 27.02.2014 of
Rs.1,23,000/- was also recovered from the house of the accused. This
estimate has been proved in the evidence of PW28 as Ex.PW28/1.
124. Ld. counsel for the accused has made the similar submissions
as made with regard to entry no.6 of bills of PP Jewelers.
125. Having examined the estimate Ex.PW28/1 and the evidence of
PW28, since PW28 has admitted in his cross-examination that firm M/s
Rama Krishna Jewelers Pvt. Ltd. was registered with VAT even during
CBI vs. Subhash Chander & Anr. (judgment) Page No. 67
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MALIK Date:
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2014. The document Ex.PW28/1 is only an estimate. PW28 admits that in
case of sale of jewelry his company would raise an invoice wherein VAT
charges would also be added. Thus only on the basis of estimate
Ex.PW28/1, an amount of Rs.1,23,000/- cannot be added in Statement-D.
Entry No.9, 10
126. Entry no.9 regarding purchase of Sony laptop by retail invoice
dated 15.10.2013 of Rs.31,500/-, entry no.10 regarding purchase of
Samsung articles vide invoice dated 09.06.2016 from Sangam India
Electronics of Rs.1,27,000/- are admitted.
Entry No.11
127. At entry no.11 of Statement-D in the charge sheet, a total sum
of Rs.3,49,250/- has been mentioned, regarding household inventory
articles. It is mentioned in the charge sheet that during the search
household and miscellaneous articles were found in the house of the
accused persons as per the list mentioned in para 17.26 of the charge sheet,
the value of which has been consolidatedly assessed to be Rs.3,49,250/-.
128. Ld. Counsel for the accused submits that the list as prepared
in para 17.25 of the charge sheet is hit by Section 162 Cr.PC being signed
from the accused during the investigation. It is submitted that PW3
Harjeet Singh examined to prove recovery of those household articles, has
admitted in his cross examination that information regarding purchase of
those articles were given by A-2 and her son. It is submitted that out of
those articles, certain articles were acquired prior to the check period and
there is no evidence from the prosecution to show that those articles were
acquired during the check period.
CBI vs. Subhash Chander & Anr. (judgment) Page No. 68 Digitally signed by SHELENDER SHELENDER MALIK MALIK Date: 2025.05.14 17:46:24 +0530
129. Having considered the submissions and taking note of search
list Ex.PW3/A, merely because that one of the accused during
investigation informed to the IO/recovery officer that articles were
purchased by accused and price was given by the accused, cannot be a
proof of expenditure regarding those articles. In the absence of any
memos, invoices establishing of those articles purchased by the accused
during check period, recovery of household articles and valuation of the
same at the instance of the accused persons is not admissible in law.
Therefore the amount of Rs.3,49,250/- cannot be added in Statement-D
towards the expenditure in respect of household, miscellaneous articles
recovered from the house of the accused.
Entry No.12 (investment of Helpline Dawa Bazar)
130. A sum of Rs.7,76,420/- has been added in Statement-D which
according to prosecution is initial investment made at the time of forming
of the said firm M/s Helpline Dawa Bazar. It has already been noted that
initially above mentioned firm was made as a partnership firm with
partnership of accused Smt.Kavita (50%), Pradeep (40%) and one Jasvir
(10%). Admittedly the investment was made only by Kavita and Pradeep.
This partnership deed was subsequently dissolved on 01.05.2017 and
converted into a proprietorship firm of Smt.Kavita. It is mentioned that
since this firm started its business by taking two shops no.11/2 and 11/3,
GF Yusuf Sarai, New Delhi on lease. As such the expenses incurred
towards creation of lease under the lease deed, expenses of security
advances paid have been added. It is stated that beside those expenses
CBI vs. Subhash Chander & Anr. (judgment) Page No. 69
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Rs.5,15,000/- can also be added as initial capital introduced. Thus the
total of the same of Rs.7,76,420/- has been added in Statement-D.
131. Ld. Counsel for the accused submitted that amount of
Rs.7,76,420/- cannot be added in Statement-D for calculating DA as the
expenses were incurred by Kavita and Pradeep by issuing their cheques
and Pradeep is not the accused in the present case. It is further argued that
investment made in the firm cannot be added in Statement-D as both
Kavita and Pradeep have paid that amount from their saving accounts.
132. Let us examine each of the component separately in the light
of evidence as come on the record as well as in the light of submissions
made by ld. Counsel for the accused.
133. For proving expenses regarding creation of lease deed in
respect of above mentioned shops on behalf of M/s Helpline Dawa Bazar,
PW12 has appeared who has testified that one shop no.11/3 is in the name
of him and his brother and another shop no.11/2 is in the name of their
mother Smt.Nirmal Gupta. PW12 says that he along with his brother as
well as his mother had let out those shop nos.11/2 and 11/3, Yusuf Sarai
Market to Smt.Kavita. PW12 states that those shops were let out at the
rate of Rs.40,000/- per month each and at the time of execution of rent
agreement he received Rs.1,60,000/- as security amount in cash. PW12
proved lease deeds which are Ex.PW12/B and Ex.PW12/D respectively.
134. Nothing came in the cross examination of PW12. Thus from
the evidence of PW12 as well as documents Ex.PW12/B and Ex.PW12/D
is established that payment of security amount of Rs.1,60,000/-, lease deed
expenses of Rs.21,600/- and rent of first month of March 2016 of
CBI vs. Subhash Chander & Anr. (judgment) Page No. 70
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Rs.80,000/- was paid by Smt.Kavita. No evidence has been led on behalf
of the accused to show that any of the expenses were incurred by Pradeep
(son of accused persons). Therefore a sum of Rs.1,60,000/-, Rs.80,000/-
and Rs.21,600/- (Rs.2,61,600/-) can be added in the Statement-D as initial
expenses incurred by accused Smt.Kavita.
135. Now coming to investment of Rs.5,15,000/- which has also
been added in total amount of Rs.7,76,420/-. A sum of Rs.5,15,000/- has
been added by CBI, the amount of initial investment made at the time of
formation of firm M/s Helpline Dawa Bazar. In this regard one witness
PW16 Ashish Goel, Chartered Accountant has been examined who proved
audited balance sheet, profit and loss account of above said firm as
Ex.PW16/A. Perusal of the Ex.PW16/A which is a production cum seizure
memo along with financial documents of the above said firm, it transpired
that partner’s investment is mentioned in Schedule A which show that
initially accused Smt.Kavita Devi and her son Pradeep Singh paid
Rs.6,15,000/- and Rs.5,00,000/- respectively, out of which Rs.3 lakhs each
were withdrawn by them and in that manner IO of the CBI calculated
Rs.5,15,000/- as initial amount of investment.
136. In this regard I find substance in the submission of ld. Counsel
for the accused that amount invested by Pradeep Singh cannot be added in
Statement-D as he is not the accused. However the amount of
Rs.3,15,000/- has been paid by accused Smt.Kavita Devi towards the
initial investment from her resources. Therefore that amount of
Rs.3,15,000/- can certainly be added in Statement-D. Thus total amount
CBI vs. Subhash Chander & Anr. (judgment) Page No. 71
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under this entry comes out to be Rs.5,76,600/- (Rs.2,61,600 +
Rs.3,15,000).
Entry No.13 (Brokerage)
137. This entry of Rs.70,000/- has been added in Statement-D on
account of brokerage, stated to have been paid by Manish Sharma as stated
during investigation. However this amount cannot be added in Statement-
D as Manish Sharma when examined as PW23 did not state anything about
brokerage.
Entry No.14 (Payment to CBI Housing Society)
138. As per prosecution case, accused Subhash Chander had
invested in purchase of a plot of 100 sq. yds at CBI Employees Co-op.
House Building Society, Village Rasoolpur, Mulanpur, Punjab for total
sum of Rs.5,46,000/-. Accused Subhash Chander paid Rs. 1,00,000/- to
CBI society and availed loan of Rs.2,70,000/- from HDFC bank.
139. The factum regarding deposit of Rs. 1 lakh by the accused is
not disputed. It is however, argued by counsel for the accused that above
said payment was paid by way of cash and cheque deposits, however, IO
has deliberately not considered the amount in the bank accounts and
conducted perfunctory investigation only to implicate the accused.
140. Having considered the fact that when deposit of Rs.1,00,000/-
by accused Subhash Chander in CBI society is not disputed. Document
D-34 has also been admitted by defence. In such situation, in the absence
of any specific deposit entry, pointed out on behalf of the accused. This
court considered that mere making allegations of certain entries not
considered by IO, without specifying any such entries in the investigation,
CBI vs. Subhash Chander & Anr. (judgment) Page No. 72
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in itself does not establish anything as such the amount of Rs. 1,00,000/-
has been rightly added in Statement D towards the expenses.
Entry No. 15 ( Payment towards HDFC Loan)
141. At entry No. 15 of Statement D, a sum of Rs.3,29,153/- has
been shown towards the HDFC loan. In this regard at para 17.29 of
charge-sheet, it is mentioned that for the purpose of purchase of plot of 100
sq. yds in CBI Employee Housing Society, accused Subhash Chander had
availed loan of Rs.2,70,000/- on 30.04.2010 and during the check period,
repaid the amount of loan of Rs.3,29,153/- (inclusive of interest @ 9 %).
142. This entry has also not been disputed by defence. Even
otherwise, taking of loan of Rs.2,70,000/- from HDFC bank Chandigarh
and repayment of the same with interest is not disputed in view of
Document D-36. As such, amount of Rs.3,29,153/- has been rightly added
in the Statement D.
Entry No. 16 (Booking of shop /unit at Parasvnath City Centre)
143. An amount of Rs.6,91,744/- has been shown in the Statement
D as according to the prosecution accused Kavita booked one shop No.
GF-148, 242 Sq. Yds. at Parasvnath City Centre, Sonipat and paid the
entire amount of Rs.6,91,744/- during the entire check period.
144. This entry has also not been disputed by defence. PW45
Dinesh Kumar Sharma has proved a letter Ex.PW45/1 as well as the copy
of receipt dt. 25.06.2013 Mark PW45/A. PW48 Ashish Jain had also
testified regarding providing of above mentioned documents. Nothing
came in the cross-examination of PW45 and PW48. Thus, the entry of
Rs.6,91,744/- has been rightly added in Statement D.
CBI vs. Subhash Chander & Anr. (judgment) Page No. 73
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Entry No. 17 ( Education of Children)
145. A sum of Rs.12,68,840/- has been added in the Statement D,
towards the education of children of accused Subhash Chander and
Kavita. It is mentioned in para 17.30 of the charge-sheet that accused had
two children namely Pradeep and Ms. Manisha. Ms. Manisha and Pradeep
both studied from 2012 to 2014 at Rishikul Vidhyrapeeth, Sonipat.
Thereafter, Ms. Manisha studied in Delhi Public School, Sonipat from
2014 to 2017. Whereas, Pradeep studied from 2013 to 2016 in Panipat
Institute of Engineering and Technology. Entire expenses had been
mentioned in Tabulation form in para 17.30. PW5 Suresh Tyagi has been
examined regarding expenses of education of Pradeep at Panipat Institute
of Engineering, PW50 Naresh Pal Singh has been examined regarding
expenditure of education of both the children of accused in Rishikul
Vidhyapeeth, Sonipat and PW52 Ranjoo Mann has been examined
regarding expenditure of studies of Ms. Manisha in DPS, Sonipat.
146. It is argued by the counsel for the accused that so far as
education expense of children at Delhi Public School, Sonipat of
Rs.5,12,800/- as shown at Sl. No. 1 of Table in para 17.30 of the charge-
sheet, same is not disputed. (Which is otherwise proved in the evidence of
PW52). It is argued by Ld. Counsel for the accused that prosecution has
not examined any witness in respect of education expenses of Rs.97,700/-
regarding Pradeep and Manisha in Rishikul Vidhyapeeth, Soniopat.
147. Ld. Counsel for accused further argued that so far as
education expenses of Rs.6,10,340/- for Pradeep at Panipat Institute of
Engineering and Technology, PW5 proved one document Ex.PW5/A,
CBI vs. Subhash Chander & Anr. (judgment) Page No. 74
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however, bare perusal of the same shows that it is not a primary document
and prosecution has not properly proved the expenses by taking the
original documents from the concerned institute. It is submitted that PW5
has admitted in cross-examination that he has no personal knowledge of
contents of letter Ex.PW5/A. Ld. Counsel further argued that amount of
Rs.48,000/- towards tickets etc. is admitted.
148. A sum of Rs.5,12,800/- towards the education expenses of
school of DPS Sonipat is not disputed. So far as education expenses of
Manisha and Pradeep when they were studying in Rishikul Vidhyapeeth,
Sonipat. PW58 in his evidence has testified that he requisitioned the total
amount of expenditure in the shape of fees etc. paid by accused in Rishikul
Vidhyapeeth, Sonipat. PW58 states that he received a letter dt. 24.03.2018
(D-38), Ex.PW58/G regarding expenditure / fees paid in that school which
as per Ex.PW58/G is Rs.1,41,240/- for Manisha and Rs.1,17,720/- for
Pradeep. Nothing has been asked in the cross-examination of PW58 to
check the authenticity of this document Ex.PW58/G. Since, nothing has
been asked in the cross-examination of PW58/G, that document would
deemed to be admitted. Although the amount mention in document
Ex.PW58/G is different than what is mentioned in sl. no. 2 of table in para
17.30. However, this Court for the reason already noted above admit total
sum of Rs. 2,58,960/- as an expenses of children of accused for their
studies in Rishikul Vidhyapeeth, Sonipat.
149. Coming now to education expenses in respect of Pradeep
when he studied in Panipal Institute of Engineering and Technology. As
noted above, PW5 has been examined who has testified regarding letter dt.
CBI vs. Subhash Chander & Anr. (judgment) Page No. 75 Digitally signed by SHELENDER SHELENDER MALIK MALIK Date: 2025.05.14 17:47:23 +0530
28.03.2018 issued from Registrar of Panipat Institute of Engineering and
Technology Ex.PW5/A as well as letter dt. 30.04.2018 issued by the
Director of the said Institute which is Ex.PW5/B. This witness further
proved another letter dt. 7.6.2014 issued by Administrator addressed to
accused Subhash Chander which is Ex.PW5/D (D-72 (ii)). Perusal of
Ex.PW5/A shows that the Registrar of that institute had provided the
information regarding education expenses of Pradeep. Similarly,
Ex.PW5/B provide details of attendance sheet of Pradeep while studying in
that Institute. Thus, going through these documents clearly show that
same has been addressed to IO of the CBI by Registrar of that Institute.
Thus, it can safely be presumed that details mentioned in Ex.PW5/A must
be derived from the official record of the Institute. There is nothing in the
cross-examination of PW5, disputing the very authenticity of contents or
information given in Ex.PW5/A. No doubt PW5 has stated in cross-
examination that he has no personal knowledge of the contents of
Ex.PW5/A. But the letter of Registrar of that Institute, cannot be disputed
regarding the information provided therein, when the authenticity of that
letter has not been challenged in any manner. Thus, amount of
Rs.6,10,340/- (inclusive fees and hostel expenses) is to be added in
Statement D. Ticket expenses of Rs.48,000/- have also not been disputed.
Thus, the total education expenses comes out to be Rs.14,30,100/-
(5,12,000/-+2,58,960/-+6,10,340/-+48,000/-).
Entry No. 18 (LIC Policy)
150. A sum of Rs.5,05,412/- has been shown at entry No. 18 of
Statement D towards the payment of LIC policy. As per prosecution case
CBI vs. Subhash Chander & Anr. (judgment) Page No. 76
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accused Subhash Chander invested into LIC scheme by policy No.
126712945, 126712969, 117059034 and stated to have paid Rs.5,05,412/-
during check period. Prosecution in this regard has examined PW22
Ms .Renu Gupta.
151 Ld. Counsel for the accused submitted that as per the
documents annexed with D-31 Ex.PW22/1, LIC policies of sum of
Rs.14,532/- and of Rs.56,508/- have been establlished, as such total
amount of Rs.71,040/- may be considered as expenditure.
152. Having examined the evidence of PW22 as well as going
through document Ex.PW22/1. Perusal of the same would show that there
is one document showing payment of Rs.14,532/- in respect of policy
No.126712969 and one document showing payment of Rs.56,508/- in
respect of policy no.126712945. However, there is no payment history in
respect of policy No.117059034. As such, the submission of Ld. Counsel
for accused is correct and total expense of Rs.71,040/- are to be added in
the Statement D.
Entry No.20 (Loan to Anil Kumar)
153. As per prosecution case, accused Subhash Chander has given
refundable loan of Rs.4,00,000/- under an agreement dt. 02.05.2016,
regarding which accused Subhash Chander had taken a signed cheque
No.000010 drawn on HDFC bank from Anil Kumar. Anil Kumar has been
examined as PW9.
154. It is argued by counsel for the accused that Anil Kumar PW9
had not supported the prosecution case and in cross-examination by PP
denied the suggestion that he had taken the loan of Rs.4,00,000/- in cash
CBI vs. Subhash Chander & Anr. (judgment) Page No. 77
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from accused Subhash Chander. It is argued that in view of evidence of
PW9 amount of Rs.4,00,000/- can not be shown in Statement D.
155. Having examined the evidence of PW9 Anil Kumar, he has
testified that he was in need of money and therefore approached A-1
accused Subhash Chander, who arranged money through one Jasbir Singh.
PW9 says that Jasbir Singh gave him two cheques of Rs.2,00,000/- each.
PW9 says that an agreement was prepared between him and accused
Subhash Chander regarding loan of Rs.4,00,000/-. PW9 says that one of
the cheque of Rs.2 lakhs given to him, returned dishonored, he later repaid
the remaining Rs.2,00,000/- by way of cheque in the name of M/s Helpline
Dawa Bazaar in which Jasbir Singh was one of the partner. Since PW9 did
not support the prosecution case, he was cross-examined by Ld. PP for
CBI. Even in the cross-examination PW9 denied having taken loan of
Rs.4,00,000/- in cash from accused Subhash Chander. PW9 was duly
confronted with his statement u/s 161 Cr.P.C Ex.PW9/PX from portion A
to A.
156. Upon examining the evidence of PW9 as a whole, it can
safely be stated that from the evidence of PW9 and the documents
Ex.PW9/A, it is not established that loan amount of Rs.4,00,000/- was
given in cash by accused Subhash Chander to PW9 Anil Kumar. Thus,
amount of Rs.4,00,000/- cannot be added in statement D.
Entry No.21 (benami investment of Rs.25,00,000/-)
157. Amount of Rs.25,00,000/- has been added in Statement D
because as per prosecution, during examining balance sheet of M/s
Helpline Dawa Bazaar, an entry regarding unsecured loan of
CBI vs. Subhash Chander & Anr. (judgment) Page No. 78
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Rs.25,00,000/- was noticed. Upon investigating about the same, it
revealed from examining Ashok Gupta, Gaurav Gupta and Pawan Gupta
that entry was nothing but rerouting of ill gotten money of accused
Subhash Chander.
158. It is argued by Ld. Counsel for the accused that from the
evidence of PW17, PW18 and PW19, it would be reflected that amount of
Rs.25,00,000/- was given by Hari Chand from his own sources and
income, on the basis of which, entry of Rs.25 lakhs was credited in the
account of M/s Helpline Dawa Bazaar. It is argued that there is nothing in
the evidence to show that those Rs.25,00,000/- had any connection or link
with accused Subhash Chander. It is submitted that even otherwise
Document D-41 i.e., proceeding memo dt. 01.11.2019 is hit by section 162
Cr.P.C.
159. Upon examining the evidence on this aspect, PW17 Ashok
Gupta testified that Hari Chand, father of accused Subhash Chander was
known to him, he came to him in Year 2016-2017 and requested that he
wanted to do some business for his son and needed Rs.25,00,000/- to be
transferred by RTGS. PW17 says that he arranged a meeting of his friend
Pawan Kumar, his nephew Gaurav transferred Rs.25,00,000/- through
RTGS in the bank account provided by Hari Chand. PW17 referred to
proceeding memo dt. 01.11.2019 which is Mark PW14/1. PW18 is Gaurav
Gupta who also testified regarding transferring Rs.25,00,000/- from his
account by RTGS to account of M/s Helpline Dawa Bazaar. PW19 also
corroborated the evidence of PW17 & PW18.
CBI vs. Subhash Chander & Anr. (judgment) Page No. 79
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signed by
SHELENDER
SHELENDER MALIK
MALIK Date:
2025.05.14
17:47:55
+0530
160. Upon examining the evidence, it has no where has come on
the judicial record that the entry of Rs.25,00,000/- sent through by RTGS
by PW18 Gaurav Gupta into the account of M/s Helpline Dawa Bazaar
had any link with any alleged ill-gotten money of accused Subhash
Chander. Nothing came in the evidence of these witnesses in this regard.
Mere fact that father of accused Subhash Chander met with PW17 asking
for the entry of Rs.25,00,000/- by way of RTGS, by in itself does not
establish any link with accused Subhash Chander. Proceeding memo
Mark PW14/1, has not been proved as per Law. Even otherwise, such
memo cannot be taken into consideration being hit by Section 162 Cr.P.C.
Thus, it can safely be concluded that entry of Rs.25,00,000/- in the
accounts of M/s Helpline Dawa Bazaar cannot be connected to accused
Subhash Chander as alleged as such, this amount cannot be added in
Statement D.
Entry No.22 (House hold expenses)
161. A sum of Rs.9,11,064/- has been shown as entry No.22 in
Statement D towards the household expenditure. The amount has been
calculated to be one third of gross income of accused Subhash Chander. I
find force in the submission of Ld. Counsel for the accused that instead of
taking gross income, net income of accused Subhash Chander was to be
taken which is Rs.21,22,451/- and one third of the same should have been
calculated towards the household expenditure which comes out to be
Rs.7,07,784/- which is to be added in Statement D. Thus the total
expenses / amount under Statement D comes out to be 35,57,037/-.
CBI vs. Subhash Chander & Anr. (judgment) Page No. 80 Digitally signed by SHELENDER SHELENDER MALIK MALIK Date: 2025.05.14 17:48:02 +0530
162. Thus on the basis of assessment made by this Court, on
Statement A to Statement D, following calculation comes out for
disproportionate assets (if any):
STATEMENT A (Assets Rs.1,73,300/- (moveable and immovable at the commencement of check period) STATEMENT B (Assets Rs.1,03,94,300/- (moveable and immovable at the end of check period) Assets acquired during Rs. 10221000 (1,03,94,300/- minus 1,73,300/-) check period.(B-A) STATEMENT C Rs.52,49,062/- STATEMENT D Rs.35,57,037/- SAVINGS (C - D) Rs..16,92,025 (Rs.52,49,062/- minus 35,57,037/-) DISPROPORTIONATE Rs.8528975/- ASSETS (B-A) minus (C - D) DA % 162.48 Liability of accused Kavita
163. Having concluded on the basis of evidence as discussed above
that there is a sufficient material, evidence on the record establishing that
accused Subhash Chander being Public Servant i.e., Constable in CBI,
amassed assets disproportionate to his known legal sources to the extent of
162.48 % . The next question arises for consideration before this Court is
whether co-accused Ms. Kavita W/o Subhash Chander is also liable for
Charge u/s 109 IPC r/w 13(2) r/w 13(1)(e) of PC Act, 1988.
164. Ld. Counsel for the accused in this regard submitted that
accused Kavita cannot be considered to have abetted her husband i.e.,
Subhash Chnader in any manner. Therefore, it is argued that accused
CBI vs. Subhash Chander & Anr. (judgment) Page No. 81
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signed by
SHELENDER
SHELENDER MALIK
MALIK Date:
2025.05.14
17:48:10
+0530
Kavita may not be convicted with the aid of Section 107 IPC for offence of
Section 13(1)(2) r/w 13(1)(e) of PC Act, 1988 which is essentially against
public servants. Reliance in this regard can be placed on the Judgment of
Delhi High Court in Madan M. Behl Vs. National Small Scale Industries
Corpn. 1971 Crl. Law Journal, 1484, P Nallammal Vs. State (1999) 6 SCC
559 and Sajju Vs. State of Kerala (2001) (1) SCC 378.
165. Section 107 IPC explains abetment of doing of a thing or
crime. In process of commission of crime there can be one who actually
commits an offence. However in certain situations other persons also
partıcipate in commission of crime or an offence, who support, instigate or
motivate the offender to commit the crime or offence. It is therefore
necessary to mark nature and degree of participation of each of persons
involved, for determining criminal liability in law. As it is said that one
who instigate the commission of crime cannot be less liable than one who
actually commits that crime. Section 107 IPC recognize this principle and
makes broad distinction between principles and abettors. Thus ‘abetment’
is constituted in following ways
(a) By instigating a person to commit an offence; or
(b) By engaging in conspiracy to commit an offence;or
(c) By intentionally aiding a person to commit an offence.
166. Abetment is an offence if the act abetted would itself be an
ofence. So as per section Sec. 107 IPC an act of abetment may take place
in one of three ways : (1) Instigation, (2) Conspiracy, or (3) Intentional
aid. Therefore, there must be evidence to show that the commission of the
crime was not possible without the specific aid rendered by co accused. In
CBI vs. Subhash Chander & Anr. (judgment) Page No. 82
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by
SHELENDER
SHELENDER MALIK
MALIK Date:
2025.05.14
17:48:17 +0530
this context it is relevant to take note of Explanation -I of section 107 IPC
as per which, willful misrepresentation or willful concealment of material
facts which accused was bound to disclose, if he does so to procure or
attempt to procure a thing to be done. Then accused would be taken to
have instigated, doing of that thing. Thus abetment by Aid, means when a
person abets the doing of a thing who intentionally aids, by any act or
illegal omission, the doing of that thing.
167. In the facts of the present case, this Court while assessing the
immovable property i.e., House No. 1854, Sector 23, Sonipat, which was
in the name of accused Kavita W/o Subhash Chander has already
examined the evidence and given the reason that accused Kavita
specifically mentioned cash component of Rs.92,20,000/- as well as
Rs.4,86,000/- given in cash towards the stamp duty and registration
expenses could not explain the availability of so much amount of cash,
which was admittedly paid towards the purchase of above mentioned
property. Further more, this Court had already concluded that co-accused
Smt. Kavita being wife of Public servant i.e., accused Subhash Chander
who was serving in CBI, therefore, there was duty on the part of the public
servant to inform to his department as per CCS Conduct Rules, about
purchase of an immovable property in the name of wife, wherein, as per
sale deed, cash component paid towards sale consideration is around
Rs.97,00,000/-. This court has already concluded that evidence of PW33,
PW35, PW36 to PW 39 regarding providing of financial help in cash
without any documentation were not believable. Thus, this Court is of
considered view that there is sufficient material on the record showing that
CBI vs. Subhash Chander & Anr. (judgment) Page No. 83
Digitally signed
by
SHELENDER
SHELENDER MALIK
MALIK Date:
2025.05.14
17:48:24 +0530
accused Kavita had aided her husband Subhash Chander in amassing the
assets, disproportionate to legal, known sources on income of her as well
as of her husband. Therefore, she is certainly liable to be held guilty for
offence u/s 107 IPC r/w 13(1)(2) r/w 13(1)(e) of PC Act, 1988.
168. So far as the Judgment as relied upon are concerned. In
Madan M. Behl‘s case (supra) without disputing the legal proposition as
laid down in para 4 of that Judgment, it was however, noted that there was
no positive allegation as against the accused Madan M. Behl, therefore,
Hon’ble High Court concluded that he cannot be convicted with the aid of
Section 107 of IPC. Similarly, in P Nallammal & Ors. Case (supra),
Hon’ble Supreme Court of India in para 21 to 26, while laying down the
legal proposition with regard to the scope of section 107 IPC, defining
abetment, explained the said offence by giving certain illustrations. In that
case, Hon’ble Supreme Court has laid down in para 21 that there is no
force in the contention that offence u/s 13(1)(e) cannot be abetted by
another person. Illustration given in that Judgment rather explains that
there can be abetment by way of encouraging close relative public servant
to amass properties, disproportionate to the legal source. In this case, Ms.
Kavita was not having sufficient resources even as per her ITR, when she
purchased the above mentioned property in her name. Thus, the Judgment
of Apex Court can hardly be of any help for accused. Another Judgment
relied upon is Sajju’s case (supra), the facts of which are also different. As
that case was for offence of murder of a womam, based on circumstantial
evidence. In peculiar circumstance of that case, Hon’ble Supreme Court
while noting the non-availability of evidence concluded that there was not
CBI vs. Subhash Chander & Anr. (judgment) Page No. 84
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signed by
SHELENDER
SHELENDER MALIK
MALIK Date:
2025.05.14
17:48:32
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sufficient evidence to show the existence of ingredients of Section 109
IPC. Thus, the said Judgment can also be not of any help for the accused.
169. Thus for the reasons stated above, this Courts conclude to
hold accused Subhash Chander guilty for offence u/s 13(1)(e) r/w 13 (2) of
PC Act, 1988 as well as accused Smt. Kavita held guilty for offence u/s
109 IPC r/w 13(1)(e) r/w 13(2) of PC Act, 1988. Copy of the Judgment
be provided to accused persons and let the accused persons be heard on the
Digitally signed
point of sentence. by
SHELENDER
SHELENDER MALIK
MALIK Date:
2025.05.14
17:48:40 +0530Announced in the open Court (Shailender Malik)
on 14.05.2025 Spl. Judge (PC Act) CBI-21
RACC/New DelhiCBI vs. Subhash Chander & Anr. (judgment) Page No. 85