TaxTMI 
TaxTMI 
2017 (8) TMI 1746
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....e all-pervasive in the present system of bureaucracy. It is a fact that rich and powerful try to stall the trial and conviction. However, fortunately, the present case has risen as an exception. 3. It is a well-known fact that New Okhla Industrial Development Authority (N.O.I.D.A.) U.P. (hereinafter referred to as "NOIDA") was established in the year 1976 with the responsibility of developing and managing Asia's largest Integrated Industrial Township for the industrial growth of the area, under the Uttar Pradesh Industrial Area Development Act, 1976 in the National Capital Region. Administration of NOIDA was entrusted to high level public officials so as to develop a planned, integrated, modern Industrial City, well connected to Delhi through a network of roads, national highways and the ultra - modern DND flyover, offering inter - road linkages to all parts of the country. Spread over 20,316 hectares, with many sectors fully developed, NOIDA offers a pollution free, high standard of living and is highly supportive of industrial environment with its unique infrastructure providing numerous, matchless facilities. However, the project got marred by land allotment scams worth several....
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....the matter of allotment of land; out of turn allotments; their illegal conversions thereof; and unwarranted changes in layout plan of most developed Sector of NOIDA, so as to satisfy to the whims of the appellant and thus abused her position. 7. Briefly stated the case of the prosecution is as follows:- Smt. Neera Yadav, while working as CCEO, NOIDA, abused her official position in the matter of allotment of plot No. B-002 in Sector-32 measuring 300 sq.ms. in the draw of lottery. Within one week, of the allotment, the appellant made request for allotment of another plot in any developed Sector, through conversion. Based on her request, plot No. B-002 in Sector-32 was converted to plot No. 26 in Sector-14A of Noida, comprising an area of 450 sq.ms. Further case of prosecution is that at the direction of Smt. Neera Yadav, CCEO NOIDA, the then Chief Architect Planner (CAP) Mr. S.P. Gautam of NOIDA put up a note dated 28.05.1994 for revising the layout of the plot nos. 26, 27 and 28 by increasing the sizes of the said plots from 450 to 562.50 sq.ms., 525 sq.ms. and 487.50 sq.ms. respectively. Thereby the area of plot No. 26 was increased by 112.50 sq.ms. and the sa....
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.... questioned under Section 313 Cr.P.C. about the incriminating evidence and circumstance and the appellant denied all of them. Upon consideration of evidence, the Special Judge CBI, Ghaziabad, vide judgment and order dated 20.11.2012 in Special Trial No. 19 of 2002, held that the prosecution has proved the guilt of the appellant beyond reasonable doubt and convicted the appellant under Section 13(2) read with Section 13(1)(d) of P.C. Act and sentenced her to undergo rigorous imprisonment of three years and fine of Rs. 1,00,000/, with default clause. Vide impugned order and judgment, the High Court confirmed the conviction of the appellant and also the sentence of imprisonment and fine imposed on the appellant. 11. Mr. K.V. Vishwanathan, learned senior counsel urged that as an officer of NOIDA, the appellant was eligible to apply for a residential plot and the appellant made her application along with the cheque of Rs. 40,000/- as registration money and that plot No. B-002, Sector-32, was lawfully allotted to the appellant. It was further submitted that conversion of plot in Sector-32 into plot No. 26, Sector-14A was in compliance with relevant rules and due....
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....ned judgment and also the materials on record. 15. Section 13 of the P.C. Act in general lays down that if a public servant, by corrupt or illegal means or otherwise abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage, he would be guilty of 'criminal misconduct'. Sub-section (2) of Section 13 speaks of the punishment for such misconduct. Section 13(1)(d) read with Section 13(2) of the P.C. Act lays down the essentials and punishment respectively for the offence of 'criminal misconduct' by a public servant. Section 13(1)(d) reads as under: "13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct, (d) if he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or" A perusal of the above ....
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....) was completely defective as it was neither completely filled, nor requisite Annexures were appended to it. Secondly, the prosecution alleged that neither the mode of payment of the registration amount was as per the norms, nor the actual requisite amount due was paid by the appellant. The application No. 648 (Ex.Ka-37), when tested on the anvil of the norms stated in the brochure of the scheme, it was found defective on following counts:- (i) The application was undated. The date on which the application was made was not mentioned; (ii) The application did not bear duly attested passport size photograph of the applicant; (iii) The column of husband/father name was left blank; (iv) The Disclosure to the effect that no other person of her family being her spouse, or daughters, own or, have obtained plots or, shops in any sector of Noida was not made; (v) Signatures of applicants were not attested by a gazetted officer. (vi) The required certificate from personal department of Noida, certifying that she was an employee of Noida, was not enclosed. (vii) The required notarized affidavit in prescribed form was not enclosed. (viii) The application which was mandator....
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.... instruments sent for clearing on 18.03.1994 nor in the Bank Statement as on 21.03.1994. 21. An appreciation of the evidence on record shows that the list of applications and cheques received by the bank on the cut-off date, did not contain details of the application and cheque given by the Appellant. Thus, it is clear that the defective application and the accompanying cheque were issued beyond cut-off date and records of NOIDA were manipulated with dishonest intention to bring in the application of the appellant within the cut-off date. Various circumstances pointed out by the prosecution, viz. non-mentioning of date on the application; making payment through cheque instead of through A/c payee Demand Draft/Pay Order; and the amount of the cheque being collected only on 28.03.1994 leads to an inference that the application of the appellant, who was the then CCEO of the NOIDA, was not given before the cut-off date i.e. 15.03.1994. The only possible inference which can be drawn in such circumstances is that though, the appellant had conveniently submitted an ante-dated application after the closure of the scheme, ante-dated 'demand draft' or 'pay order' could not h....
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....available in Sector-14A, Noida. The High Court and the trial court rightly recorded concurrent findings of fact that the application of the appellant suffered from material defects which were sufficient to discard the application; but by illegal means, the application was processed by the appellant. Unjustified change in layout plan of Sector-14A : Resultant loss to NOIDA and advantage to the appellant:- 25. Lease deed of plot No. 26 (Ext. A-45) was executed on 19.05.1994 in favour of the appellant. On 28.05.1994 S.P. Gautam, Chief Architect Planner proposed vide proposal dated 28.05.1994 Ext. A-64 a plan for making provision of a 7.5 m. wide road between the official residence of CCEO of Greater Noida and plot No. 26 of the appellant. The Chief Architect Planner also proposed enhancement of area of plot No. 26 by 112.50 sq.ms. with further proposal for re-organization of plots in view of loss of area of 225 sq.ms. in the proposed road. Without any questioning, the said proposal was approved by the appellant herself on 31.05.1994 and size of plot No. 26 was thus enhanced to 562.50 sq.ms. No cogent reason has been furnished by the appellant for approving the a....
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....re was no alteration in the area and position of the plot nos. 26, 27 and 28 in Sector-14A. However, from 10.01.1994 to 08.11.1995 the area and position of plots were changed at least five times. Initially in Sector-14A, apart from plots 26, 27 and 28 there was an unnumbered plot with area of 529.35 sq.ms. as shown in Map No. 2 dated 11.02.1994. However, after effecting several changes, the same was reduced to 90 sq.ms. On 28.05.94, as depicted in Map No. 4 and as per Map No. 6, it was brought to a shape of small trapezium with area just measuring 190.95 sq.ms., thereby causing substantial loss of land to Noida. 28. It is noteworthy that the unnumbered plot measuring 529.35 sq.ms. completely disappeared, as is clear from Map No. 5 and the left over area was of no use to NOIDA as the same being trapezium in shape and resultantly left unsuitable for allotment. The provision of 7.50 ms. wide road to the right of plot No. 26 is completely devoid of any justification. As also available on record, appellant Neera Yadav and one Mr. Rajiv Kumar got allotted plots adjacent to each other viz. plot No. 26 and 27, followed by about 8 ms. or 26 feet wide green bel....
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....er plot towards West by 7.5 ms. and further extended it towards West by another 3.75 sq.ms. by enhancing area of her plot by 112.50 sq.ms., and thereby causing loss of the area of 225 sq.ms. plus 112.50 sq.ms. total 337.50 sq.ms. and getting undue advantage to herself. 30. That apart, as discussed by the High Court, in Map No. 3 dated 11.02.1994, the road in east of plot No. 26 has been wrongly shown since as seen from the evidence of PW-19 S.P. Gautam, Chief Architect Planner the road was introduced for the first time vide proposal dated 28.05.1994 and the same was approved by appellant Neera Yadav on 31.05.1994 vide Map No. 6. Be it noted that even in the lease deed dated 19.05.1994, the eastern boundary of the plot was shown as 'road' which in fact did not actually exist on 19.05.1994. Proposal for road was put up by PW-19 S.P. Gautam only on 28.05.1994. Map No. 3 wrongly shows the road on the eastern side only to make good the boundaries in the lease deed in respect of plot No. 26 allotted to/executed in favour of appellant Neera Yadav on 19.05.1994. This again shows the dishonest intention of the appellant in making provision for road, to gain an undu....
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....ective and incomplete. 33. It is the case of the prosecution that the allotment of shops and residential plots in favour of daughters of the appellant were in complete violation of terms and conditions of the allotment Scheme 1994 (II) and (III), which provides that no person or his family member can get allotment of more than one plot in NOIDA. The prosecution has stressed on the point that the daughters of the appellant were dependant on the appellant and her husband for their studies and livelihood and that the major payments for the above mentioned shops and plots allotted in the name of the two daughters were made from the joint accounts of the appellant and her husband, Mr. M.S. Yadav. The prosecution also drew our attention to the fact that after allotment of plot No. A-33 Sector-44, the shop allotted to Ms. Sanskriti was sold to one Ms. Meenakshi Vijayan on 19/20.10.1995 (Paper no. 14/Ka-4) and while selling the shop it was mentioned by Ms. Sanskriti that she has already availed the benefit of seeking allotment of a residential plot against the shop, meaning thereby that the shop was acquired by her only with the mala fide intention of getting a residential plot. 34.....
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....e (II) and (III) of 1994, without noticing that the applications moved by Ms. Sanskriti and Ms. Suruchi were defective and that they never carried business in those shops. The appellant failed to adduce any evidence to show that her daughters ran any kind of business in those shops. In fact the prosecution has been able to prove that the appellant had sought allotment of the concerned shops in favour of her daughters only to make them eligible for seeking allotment of residential plots. It is proved that the shop allotted to Ms. Sanskriti was sold to one Mrs. Meenakshi Vijay on 19.10.1995 (Paper No. 14/Ka-4) and while selling the shop it was mentioned by Ms. Sanskriti that she has already availed the benefit of seeking allotment of a residential plot against the shop. 38. The appellant's contention that merely by showing that the concerned shops had supply of electricity; were registered under 'The Shops Act' for doing the business of 'Decorators and Florescent' etc., it has been successfully proved that the shops were fit to be declared functional, does not hold good, especially when the evidences are available on record to show that appellant had mala fide inten....
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....DRs & securities. Considering the documents produced by the appellant, the approximate value of total assets of the daughters of the appellant comes to around Rs. 4.00 lakhs to Rs. 5.00 lakhs each. However, value of the shops allotted in favour of the daughters was around Rs. 4.00 lakhs to Rs. 5.00 lakhs and the value of the residential plots allotted to Ms. Sanskriti and Ms. Suruchi was Rs. 7,31,875/- and Rs. 8,89,333/- respectively totalling to Rs. 16,21,208/-. The appellant has not produced any document to show that some of the alleged assets or F.D.R. etc. were disposed of to realise the amount of registration fee of the shops and plots allotted in their favour. In such circumstances, by no stretch of imagination it can be proved that the concerned properties worth Rs. 10.00 lakhs each were purchased by the daughters of appellant, out of their independent incomes. Even if the plea of the appellant is accepted to be true that her daughters had inherited valuable properties through 'Will' executed by their Nani (maternal grandmother), it cannot be proved that the concerned plots were purchased from the said income. 41. The appellant has fu....
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....ccompanied with cash amounts and not with bank account details from which the requisite amounts could have been deducted. As the daughters of the appellant were studying at that time and since no source of income, or certified copies of income tax returns have been filed on behalf of the appellant, the only presumption that can be drawn is the fact of payments being made at the behest of the appellant and her husband. The said presumption is further supported from testimony of PW-14 Subhash Badhawan Retired Deputy Manager, State Bank of India who has deposed that from the Account No. 43504 of Mahendra Singh Yadav and Neera Yadav Rs. 35, 000/- on 22.02.1994; Rs. 40,000/- and Rs. 2,500/- on 01.03.1994; Rs. 29,000/- and Rs. 6,000/- were debited. 43. It has further come on record that Ms. Sanskriti had issued cheque dated 08.08.1994 (Paper no. 26 ka/2) in favour of herself, accompanied with an application for purchase of pay order of Rs. One lakhs eighteen thousand seven hundred fifty, in favour of NOIDA towards payment of purchase amount for residential plot. The said cheque was drawn on account No. 9180, Oriental Bank of Commerce, Paharganj, N....
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....ng them to be independent income tax assesses, which was otherwise not possible in the light of provisions of the Scheme of 1994, which mandates that no person or his family member can get allotment of more than one plot in NOIDA. The appellant not only gained pecuniary advantage for herself by manipulating the Rules of NOIDA but, also caused grave loss to NOIDA. Valuable thing obtained by the appellant by abusing her official position 45. The prosecution has successfully proved that the appellant Neera Yadav abused her position as a public servant to benefit herself and her kith and kin. She not only made a mockery of rules and regulations of NOIDA, but also misused her position by completely neglecting her duties. Being a Chairman-cum-CEO of NOIDA she was expected to ensure that the allotment of plots in NOIDA are effected in strict compliance with the Rules and Regulations of NOIDA. However, the appellant herself bypassed the Rules and Regulations of NOIDA by submitting ante dated, half-filled applications for seeking allotment of plots and by not paying the total amount payable in lieu of the allotment. There is no justification as to why the defective application of the app....
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....ghters by herself preferring defective applications on their behalf and making payments in lieu of the same, with the sole objective of securing a residential plot in lieu of the shops, under Scheme (II) and (III) of 1994. The prosecution was successful in proving that the daughters of the appellant were dependant on the appellant and that they had purchased the shops and residential plots only out of the money contributed by the appellant and her husband. This amounts to grave violation of Rules of NOIDA and being a CCEO of NOIDA, the appellant is guilty of obtaining valuable thing for herself and her daughters by abusing her position as a public servant. The daughters of the appellant were not even engaged in filing their applications as their signatures are missing from applications made on their behalf, seeking allotment, conversion etc. 49. The appellant acted in breach of rules and regulations of NOIDA, causing financial losses to NOIDA and valuable things were obtained by the appellant and her daughters. The fact that the appellant acted in flagrant violation of the rules, by giving a complete go-by to the public interest to promote her individual interest, shows that she a....
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....eached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity...." 54. While approving the judgment of Subramanian Swamy v. Director, Central Bureau of Investigation and Anr. (2014) 8 SCC 682, rendered by another Constitution Bench in Manoj Narula's case, a Constitution Bench of this Court dealing with rampant corruption, observed as under:- "17. Recently, in Subramanian Swamy v. CBI (2014) 8 SCC 682, the Constitution Bench, speaking through R.M. Lodha, C.J., while declaring Section 6-A of the Delhi Special Police Establishment Act, 1946, which was inserted by Act 45 of 2003, as unconstitutional, has opined that: (SCC pp. 725-26, para 59) "59. It seems to us that classification which is made in Section 6-A on the basis of status in the government service is not permissible under Article ....
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....ce, righteous use of power and transparency in administration. Corruption is no longer a moral issue as it is linked with the search of wholesome governance and the society's need for re-assurance that the system functions fairly, free from corruption and nepotism. Corruption has spread its tentacles almost on all the key areas of the State and it is an impediment to the growth of investment and development of the country. If the conduct of administrative authorities is righteous and duties are performed in good faith with the vigilance and awareness that they are public trustees of people's rights, the issue of lack of accountability would themselves fade into insignificance. 56. To state the ubiquity of corruption, we may refer to the oft-quoted words of Kautilya, which reads as under:- "Just as it is impossible not to taste the honey or the poison that finds itself at the tip of the tongue, so it is impossible for a government servant not to eat up, at least, a bit of the king's revenue. Just as fish moving under water cannot possibly be found out either as drinking or not drinking water, so government servants employed in the government work cannot be found out (while) takin....
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....se. In Special Trial No. 19 of 2002 for conviction under Section 120-B IPC and Section 13 (2) read with Section 13 (1) (d) of P.C. Act, appellant Neera Yadav was sentenced to undergo rigorous imprisonment for a period of three years with a fine of Rs. 50,000/- and similar imprisonment for conviction under Section 120-B IPC. 60. Mr. Vishwanathan, the learned Senior Counsel also submitted that even though the conviction of the appellant is in two different cases, involving two different transactions, in exercise of power of discretion, the sentence of imprisonment imposed upon the appellant Neera Yadav in the above two cases may be ordered to run concurrently. It was submitted that the direction to order sentences to run concurrently can be passed by the appellate court. In support of his contention, the learned Senior Counsel placed reliance upon Nagaraja Rao v. Central Bureau of Investigation (2015) 4 SCC 302 and V.K. Bansal v. State of Haryana (2013) 7 SCC 211. 61. On behalf of CBI, learned Solicitor General Mr. Ranjit Kumar submitted that the conviction of the appellant relates to two different transactions - one abusing appellant's official position to get the plots ....
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....not exceed twice the maximum imprisonment awardable by the sentencing court for a single offence. .... 12. The words in Section 31 CrPC "... sentence him for such offences, to the several punishments prescribed therefor which such court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court may direct" indicate that in case the court directs sentences to run one after the other, the court has to specify the order in which the sentences are to run. If the court directs running of sentences concurrently, order of running of sentences is not required to be mentioned. Discretion to order running of sentences concurrently or consecutively is judicial discretion of the court which is to be exercised as per the established law of sentencing. The court before exercising its discretion under Section 31 CrPC is required to consider the totality of the facts and circumstances of those offences against the accused while deciding whether sentences are to run consecutively or concurrently. ..... 20. Under Section 31 CrPC it is left to the full discretion of the court to order the sente....
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....minal Procedure Code, there are no guidelines or specific provisions to suggest under what circumstances the various sentences of imprisonment shall be directed to run concurrently or consecutively. There is no strait jacket formula for the Court to follow in the matter of issue or refusal of a direction within the contemplation of Section 427(1) Cr.P.C. Whether or not a direction ought to be issued in a given case would depend upon the nature of the offence or offences committed. In para (69) in K. Prabhakaran v. P. Jayarajan (2005) 1 SCC 754, contains a discussion on the topic. To quote:- "69. In the case of the respondent, the Magistrate ordered that the sentence on various counts shall run consecutively. That does not mean that the respondent had been convicted of any offence, for which the sentence of imprisonment is two years or more. The direction for the sentence to run concurrently or consecutively is a direction as to the mode in which the sentence is to be executed. That does not affect the nature of the sentence. It is also important to note that in the Code of Criminal Procedure, there are no guidelines or specific provisions to suggest under what circumstances the v....
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....fusal of a direction within the contemplation of Section 427(1) Cr.P.C. Depending on the special and peculiar facts and circumstances of the case, it is for the court to make the sentence of imprisonment in the subsequent trial run concurrently with the sentence in the previous one. In Benson v. State of Kerala (2016) 10 SCC 307, this Court directed the substantive sentences imposed on the appellant to run concurrently. In V.K. Bansal v. State of Haryana (2013) 7 SCC 211, some sentences were to run concurrently and some consecutively. In paras (14) and (16) in V.K. Bansal's case, it was held as under:- "14. We may at this stage refer to the decision of this Court in Mohd. Akhtar Hussain v. Collector of Customs (1988) 4 SCC 183 in which this Court recognised the basic rule of convictions arising out of a single transaction justifying concurrent running of the sentences. The following passage is in this regard apposite: (SCC p. 187, para 10) "10. The basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It....