Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Collective Decision Of Statutory Board-cannot Be Conspiracy By One-consensus Evidence Missing-Smt. Neera Yadav Granted Bail.
JUDGEMENT TITLE : Smt. Neera Yadav Vs. State Of U.P. Thru. C.B.I. On 12/13/2010 By Allahabad High Court
CORAM : Hon'ble Vinod Prasad,J.




SMT. NEERA YADAV.................................APPELLANT
(In Jail)

STATE THROUGH C.B.I........................RESPONDENT.

(Order On The Bail Prayer Of Appellant Smt. Neera Yadav)

Hon'ble Vinod Prasad, J.

Appellant Smt. Neera Yadav, The Then Chairman And CCEO, Of NOIDA, Has Been Convicted In Special Trial No. 21 Of 2002, C.B.I. Versus(1) Neera Yadav (2) Ashok Chaturvedi, By Special Judge, Anti Corruption, Ghaziabad, Relating To PS C.B.I / A.C.U ( Seven), New Delhi Concerning RC No. 3A/98, Under Sections 13(1) (d) Read With Section 13 (2) Of The Prevention Of Corruption Act, 1988 ( Herein After Referred To As The Act) And 120B, I.P.C. For Showing Undue Favour To The Co Accused Ashok Chaturvedi By Allotting Two Residential Plots Being Plot Nos. U U2/ 11 ( Area 8000 Square Meters) And Plot No. 99/ 51 ( Area 20000 Square Meter) To His Two Industrial Units Namely M/S Flex India Ltd And M/S Flex Engineering Ltd,from New Okhala Industrial Development Authority, Commonly Known As NOIDA On A Reduced Price And By Ignoring And Forgoing The Procedure Meant For Such Allotments And In Execution Thereof Benefited Him Economically Of Rs. 32 Lacs And Rs. 80 Lacs And Correspondingly Caused Losses To NOIDA Of The Said Amount. For Both The Charges She Has Been Sentenced To Four Years RI With Fine Of Rs. 25000/= On Each Of Both The Counts ,the Default Sentences For Each Of It Being One Year Additional Imprisonment. Both The Sentences Have Been Ordered To Run Concurrently By The Trial Judge. Appellant Has Challenged Her Conviction And Sentences By Preferring Instant Appeal And Has Prayed For Release On Bail During Pendency Of Her Appeal In This Court. Her Appeal Has Been Admitted And Her Bail Prayer U/S 389 Cr.P.C. Is Being Considered Herein Below.
Sri S.K. Yadav, Learned Counsel For The Appellant Smt. Neera Yadav Was Heard In Support Of Her Bail Prayer And Sri N.I.Jafri, Learned Counsel For C.B.I. Along With Bharat Singh, Investigating Officer For C.B.I. Were Heard In Opposition Thereof And Impugned Judgement Of Conviction And Sentence Under Challenge Was Perused And The Order Was Reserved, Which Is Now Being Delivered Here Under.
In Order To Bring Home The Charge C.B.I. Examined In All Eleven Prosecution Witnesses- PW1 D.P. Khatri, PW2 Dr. Arun Veer Singh, PW3 Suresh Chand Pakreja, PW4 Satish Juyal, PW5 Ashok Kumar Tripathi, PW6 Prabhat Kumar, PW7 B.K.Joshi, PW8 A.S.Kumar, PW9 G.C. Tiwari, PW10 Bharat Singh, Inspector , CBI And PW11 Rishi Prakash, S.P. ,C.B.I. Besides Relying Upon Documentary Evidences.
Out Of Aforesaid Prosecution Witnesses PW7 V.K.Joshi, PW8 A.S.Kumar, PW9 G.C.Tiwari, Turned Hostile And Did Not Support Prosecution And Resiled From Their Investigatory Statements. PW1 D.P.Khatri Had Evidenced For Grant Of Sanction For Prosecution Of Smt. Neera Yadav By The Competent Authority. PW2 DR. Arun Veer Singh, Finance Officer , NOIDA And PW3 Suresh Chand Pakreja, Manager, NOIDA Evidenced Only Handing Over Of Various Documents To Investigators Of C.B.I. Ashok Kumar Tripathi, PW5, Was Executive Vice President Of Another Industrial Unit, The Supreme India Ltd. Who Was One Of The Applicants For Allotment Of Plots While PWs 10 And 11 Are Inspector, I.O., C.B.I And S.P., C.B.I. Who Are The Investigators. Thus C.B.I. Mainly Relied Upon Oral Evidences Of PW4 Satish Juyal, And PW 6 Prabhat Kumar In Conjunction With Evidence Of PW 5 Ashok Kumar Tripathi And Documentary Exhibits To Bring Home The Charges Against The Appellant.
Trial Judge Came To The Conclusion That Direct Evidence Against The Appellants To Establish The Offences Is Difficult To Procure After Such A Long Delay (Page 35 Of Impugned Judgment) And Hence Based His Conclusions On Various Circumstances To Opine That The Guilt Of The Appellant Stands Proved Beyond Any Pale Of Doubt. The Circumstances So Relied Upon, Inked At Page 21 And 22 Of The Impugned Judgment, Are:-
(i)Two Days Prior To Opening Of Group Housing Scheme, Acceptance Of Form From Another Accused Appellant Ashok Chaturvedi, (ii) One Day Prior To The Opening Of The Scheme Reservation Of Land For Him (iii) Reducing Price Of Plot Upto Rs. 400/= Sq. Meter For Giving Benefit To Him(iv) No Reason Existed For Reduction Of Price Of Plot (v) Joint Resolution To Allot Plot To Ashok Chaturvedi One Day Prior And Allotment On The Same Day On Which Scheme Was Opened (vi) None Mention Of Reduced Price Either In The New Advertisements On 19.10.94 And 21.10.94 Or In The Brochure (vii) Tendering Of Reservation Money By Co Accused Without Any Reason Along With Submission Of Allotment Form( Viii) Direct Acceptance Of Application From Ashok Chaturvedi Written On His Letter Head By Present Appellant Smt. Neera Yadav Which Was Addressed To Her And Which Was Not On The Designed Proforma ( Ix) In The Revised Scheme, Amalgamation Of Two Units Of Same Group As One (x) Benefit Of Revised Scheme Only To Flex Engineering Co. (xi) Natural Presumption Of Appellant Smt. Neera Yadav Being CEO Having Knowledge Of All Advertisements, Applications And Eligibility Of Applicants ( Xii) Queer Joint Resolution Favouring Ashok Chaturvedi And Non - Disclosure About It's Existence And Preparation ( Xiii) Allotment In Haste When Number Of Plots Were Neither Restricted Nor The Scheme Was First Come First Serve.
On The Above Very Briefly Sketched Facts, In Support Of The Bail Prayer Of Appellant U/S 389 Cr.P.C., Learned Counsel Castigated And Criticized The Impugned Judgment Of Conviction By Canvasing That The Same Is Based On Pure Conjecture And Surmises And Can Not Be Sustained At All. He Submits That Decision To Allot Plots Under Corporate Group Housing Scheme Was Taken By NOIDA Authority In It's 76th Board's Meeting Dated 18.3.94 Or 28.3.94 (dates Do Not Tally At Pages 2 First Line And At Page 7 Middle) And The Scheme Was Launched On 9.6.94. In That Scheme Both The Units Of Co Accused Applied For Allotment Of Land At The Rate Of Rs. 1600/= Per Square Meter. Had There Been Any Conspiracy Co Accused Company Would Not Have Applied For Allotment At That Rate.
Because Of Poor Response, As Only Two Out Of Seven Applicants Were Eligible For Allotment, That A Resolution Was Adopted By NOIDA Board And Not By Neera Yadav Alone, In It's 78th Meeting, That The Scheme Be Re-advertised After Easing Terms And Conditions For Allotment And Sliding Down The Rate Of Plots As Well From Rs. 1600/= Per Square Meter To Rs. 1200/= Per Square Meter. It Was Not The Individual And Independent Decision Of Appellant Smt. Neera Yadav Alone For Which She Could Alone Be Held To Be Guilty.
It Was Further Argued That None Of The Members Of The Board Were Made An Accused In The Case Albeit The Decision Was That Of NOIDA Board's Collective Decision And Appellant Neera Yadav Being The CCEO Was Duty Bound Only To Implement That Decision As She Could Not Have Altered Or Reversed It. In Support Of This Argument Reliance Was Placed On Depositions Of PW8 Dr. Prabhat Kumar IAS, As Is Referred To At Page 26 Of The Impugned Judgment, Wherein He Has Clearly And Cogently Testified Without Any Ambiguity That What Ever Relaxation In The Scheme Was Given It Was Given By The Board And CEO Could Not Have Altered It And By Such An Alteration NOIDA Did Not Suffer Any Economic Loss. Said Argument Was Further Cemented By Referring To Pages 37 To 39 Of The Impugned Judgment.
It Was Next Submitted That Successor In Office Of Appellant Smt. Neera Yadav Realized The Price Of The Allotted Land At The Rate Of Rs. 1600/= Per Square Meter From Co Accused Ashok Chaturvedi Treating His Application For Allotment Of Land Under Unaltered Scheme And Hence For Subsequent Alteration Appellant Could Not Have Been Prosecuted At All And No Offence Is Made Out Against Her. For This Argument Reference Was Made At 14, 16,26 And 41 Of The Impugned Judgment.
It Was Further Submitted That At No Point Of Time Allotment To Co Accused Was Canceled And, To The Contrary, Decision Of Relaxation Was Confirmed In NOIDA Board's Next Meeting. In Support Of These Arguments Reliance Was Placed On Page 40 And 41 Of The Impugned Judgment.
It Was Next Submitted That On The Day On Which Scheme Was Opened There Were Only Two Applicant Units Those Of Co Accused Ashok Chaturvedi And None Else And Hence Preparation Of Joint Resolution Does Not Indicate Any Malpractice Being Adopted By NOIDA Authorities And In Support Of This Argument Attention Was Drawn To Page 70 Of The Impugned Judgment Wherein It Is Mentioned That Other Two Different Industrial Units Applied On 16.11.94 And 23.3.95, When The Scheme Was Opened On 22.10.94.
It Was Further Submitted That Three Prosecution Witnesses, PW7, PW8 And PW9 Turned Hostile And Did Not Support The C.B.I.
It Was Next Contended That Before Allotment Of Land To Ashok Chaturvedi A Joint Resolution Was Passed Vide Ext. Ka 10 And Ka 11 For Allotment Of Land To Him And Since There Is No Evidence Worth In Name That Joint Resolution Was Passed Favouring Co Accused At The Behest Of Smt.Neera Yadav Or She Had Any Role In That Preparation Of Joint Resolution Or That Ashok Chaturvedi Had Any Role To Play In Preparation Of That Resolution Or He Was In Contact With Co Accused That Charge Of Conspiracy Fails. For This Reliance Was Placed On The Last Portion Of Page 43 Of The Impugned Judgment In Conjunction With Pages 39 And 42.
It Was Further Argued That There Is Total Absence Of Any Evidence, Not Even Worth In Name, That There Was Any Pre-concert Or Meeting Of Minds Between Two Accused For Altering Terms And Conditions Of Floated Scheme And Hence Also Charge Of Conspiracy Is Groundless. It Was Vehementally Submitted That For Establishing The Charge Of Conspiracy Pre Concert Of Minds Of Two Accused Ie: Sensus -id- Idum Between Them Should Be Proved To Have Preceded The Act But In The Present Case There Is Total Absence Of Any Such Evidence.
Castigating Evidence Of PW3 Suresh Chand Pakreja It Was Pointed Out By Referring At Page 37 Top Of The Impugned Decision That The Said Witness Is A Wholly Unreliable And Untrustworthy Witness As He Had Taken A U Turn From What He Had Testified In His Affidavit Before The Apex Court Wherein He Had Mentioned That No Illegality Had Been Committed In Allotment Of Plots To Accused Ashok Chaturvedi.
Impugned Judgment Was Also Criticized By Pointing Out At Para 30 That Albeit Trial Judge Relied Upon Documents Regarding Sanction From The Competent Authority But Denied Opportunity To The Accused To Cross Examined PW1 On The Strength Of Those Documents And Hence Decision By The Trial Judge Is Faulty. It Was Suggested That The Accused Can Not Be Taken By Surprise And No Document Could Be Utilized Against Him By The Prosecution Without Affording Him Opportunity To Rebut.
It Was Also Argued That Prior To Registration Of FIR The Money At The Rate Of Rs. 1600/= Per Square Meter Was Already Realized From The Accused Ashok Chaturvedi And Hence Date On Which FIR Was Registered There Was No Financial Loss To NOIDA Nor It Is The Case Of C.B.I That Late Deposit Of Rs. 400/= Was Culpable. On The Contrary Evidence Of PW6 Is That NOIDA Did Not Suffer Any Loss.
It Was Next Submitted That Finding That All Facts Were Not Placed Before The Members Of NOIDA Board In It's Meeting By Appellant Smt. Neera Yadav Is Purely Conjectural And Hypothetical As There Was No Evidence At All In That Respect As None Of The Prosecution Witnesses Uttered A Single Word In That Respect. Once The Decision Was Board's Decision And No Member Of The Board Objected To The Said Decision And Confirmed It In It's Next Meeting, Fetching Out A Third Case By The Trial Court On Hypothetical Surmises Can Not Be Countenanced Submitted Learned Counsel.
It Was Next Submitted That There Is No Evidence That Any Of The Accused Had Obtained Any Pecuniary Benefit Or Had Obtained Any Undue Advantage Of Any Kind From The Allotments And Hence The Case Of The Appellant Do Not Fall In Any Of The Categories Under Section 13 (1) (d) Read With Section 13 (2) Of The Act. In This Respect It Was Argued That Ashok Chaturvedi Deposited The Money At The Rate Of Rs. 1600/= Per Sq. Meter And Hence He Was In No Way Benefited Either In Allotment Of Plots Or In Payment Of It's Price And He Could Not Gain Any Thing By Scaling Down The Prices.
It Was Further Contended That The Sentence Awarded To The Appellant Is Only Four Years RI And Appellant Was On Bail During Trial, Which Liberty She Had Not Misused And Her Appeal Is Not Likely To Be Heard In Near Future And That She Be Released On Bail And Her Sentence Be Suspended. It Was Further Argued That The Appellant Do Not Have Criminal Record Nor She Has Any Criminal Proclivities And There Is No Chance Of Her Tampering With Evidences. It Was Also Submitted That Appellant Is An Old Lady Aged About 62 Years Of Age And She Is A Retired IAS Officer Hence She Should Also Be Given Benefit Of Proviso Attached To Section 437 Cr.P.C. And Since Her Appeal Is Continuation Of Her Trial That She Should Be Released On Bail.
Learned Counsel For C.B.I As Well As Bharat Singh It's I.O. Both Reiterated The Same Observations As Are Mentioned In Impugned Judgment To Oppose The Bail Prayer. They Argued That The Entire Exercise By The Appellant Indicate Her Conspiracy And Abuse Of Power And Hence The Appellant Should Not Be Released On Bail. Sri Jafri Relied Upon FIR Allegations And Statement Of The I.O. In Support Of The Argument Besides Mentioning Evidences Of PW 4.
I Have Considered Arguments Of Rival Sides And Cogitated Over Evidences Led In The Trial. Following Facts Emerges From Such An Analysis:-
1- That The Trial Judge Has Not Charged The Appellant Correctly. Section 13(1) (d) Of The Act Is Fragmented Into Three Sub Categories From (i) To (iii), Which Are Different In Contents And For Which Different Ingredients Are Required To Be Proved To Establish Them. Even While Convicting The Appellant Trial Judge Has Not Taken Care To Mention As To Under Which Of The Heads Of The Three Sub Clauses He Has Found The Case Of The Appellant Accused Established Beyond Any Shadow Of Doubt. Even If The Said Fact May Be An Irregularity But The Same Indicates A Non Caring And Casual Approach Of The Trial Judge While Passing Impugned Judgment And It Indicates Not A Careful Application Of Mind While Deciding The Case And Analyzing Of Evidences.
2- Trial Judge Has Also Not Addressed Himself To The Fact As To Whether There Was Any Pre-meeting Of Minds In Between Accused Or Not Prior To Allotment Of Plots To Appellant Ashok Chaturvedi. No Finding Has Been Recorded In This Respect By Him. As Criticized Above, In Absence Of Such A Finding That Both The Accused Acted Concertedly In Execution Of Their Hatched Up Conspiracy Conviction Of Both The Accused Under Section 120B IPC Is Difficult To Be Sustained. In This Connection It Is To Be Noted That Entire Activities Were In The Knowledge Of All The Members Of NOIDA Board And It's Employees. The Same Was Not In Exclusive Knowledge Of Appellant Neera Yadav Alone And Hence It Will Be Preposterous To Cogitate That The Act Done With Concurrence Of Entire Statutory Body Was A Conspiracy Of A Single Individual. No Where It Is The Case Of CBI The Entire Procedure Of Allotment Of Land Was Not Known To Entire Members Of NOIDA Board Or It's Employees And Was Only In The Knowledge Of The Appellant Alone. An Act Which Was Known To Every One Prior To It's Execution Can Not Be A Conspiracy As The Same Is Already Known To Every One. In This Respect Opinion By The Trial Judge That Conspiracy Was A Clandestine Act Of The Appellant Alone Is Against The Very Foundation Of Prosecution Case And Is Contrary To Factual Matrix.
3- Floating Of Scheme,alteration Of Terms And Conditions And Making Of New Advertisement Was The Collective Decision Of NOIDA Board And Hence Appellant Smt. Neera Yadav Singularly Can Not Be Saddled With Responsibility Of Reduction Of Amount From Rs. 1600/= To Rs. 1200/= Per Square Meter. It Is Evident From The Record Specially From Testimonies Of PW6, Which Has Been Heavily Relied Upon By The Trial Judge, That That Appellant Could Not Have Altered The Decision Of NOIDA Board On Her Own And Was Bound To Implement It.
4- It Is Also Established That, Albeit Ashok Chaturvedi Was Given Land At The Rate Of Rs 1200/= Square Meter But His Application Was Taken To Be One Under Unaltered Scheme And He Was Asked To Deposit Additional Amount Of Rs. 400/= Per Square Meter Which Amount He Had Deposited Prior To Registration Of FIR And Hence On The Date On Which FIR Was Registered There Was No Pecuniary Loss To NOIDA Authorities.
5- Impugned Judgement Is Conspicuously Silent As To Whether Smt. Neera Yadav Was In Any Way Benefited From Such Allotment. It Was Also Conceded By Respondent C.B.I. Counsel That There Is No Evidence On Record To Indicate Even Remotely That Smt. Neera Yadav Gained Any Thing Either Monetarily Or Otherwise Or That She Had Obtained For Herself Or For Any Other Person Any Valuable Thing Or Any Pecuniary Advantage By Corrupt Or Illegal Means Or That She Abused Her Office For Such A Gain.
6- It Was Also Pointed Out That In Examination Of Accused Under U/S 313 Cr.P.C. No Question Was Put To The Appellants That They Had Conspired With Each Other To Obtain For Themselves Any Valuable Thing Or Pecuniary Advantage And Hence Conviction Of The Appellant Under Section 13 (1) (d) Of The Act Is Not Sustainable.
7- Prosecution In This Case Rests Solely On Circumstantial Evidences And It Transpires That The Chain Of Circumstances Do Not Lead To Irresistible Conclusion That Smt. Neera Yadav Indulged Into Any Corrupt Practice On Her Own And Hence There Is Insufficient Evidence On Record Lead To Conclusive Conclusion That Her Act Falls Within The Is Purview Of Definition Clause "Criminal Misconduct" And Consequently There Seems To Be Deficient Evidence On Record To Sustain Her Conviction Under The Act.
8- It Is Noticeable That Accused Ashok Chaturvedi Was Always Ready To Take Plot At The Rate Of Rs 1600/= Per Square Meter And That Is Why Both Of His Industrial Units Had Applied For Allotment Of Plots At The Said Price And Out Of Them Only One Of His Unit Fulfilled The Condition For Allotment And Hence It Is Not Understandable Why He Will Apply Prior In Time If He Had Conspired With Smt. Neera Yadav For Lowering Of Prices.
9- There Is Absence Of Material In The Impugned Decision That There Was Any Correspondence Between The Two Accused In Respect Of Allotment Of Plots Or They Where Known To Each Other Since Prior To Allotment Of Plots. No Finding Has Been Recorded By The Trial Judge In This Respect. The Circumstances Referred To By The Trial Judge In This Respect Were Known To All The Members Of NOIDA Board And Not To Neera Yadav Alone.
10- When The Advertisement Was Made For The Second Time In October' 94 Then Only Two Units Of Ashok Chaturvedi Had Applied For Allotment Of Plots And Rest Of The Two Units Had Applied Much Later. Sahara India Applied For Allotment On 16.11.94 And M/S Rajasthan Spinning And Weaving Mills Applied For Allotment 23.3.95 (Page 70 Of The Impugned Judgment). Thus On The Date On Which Scheme Was Opened There Were Only Two Applicants.
11- Allotment Of Plots To Co Accused Was Never Canceled And Instead He Was Asked To Deposit Residue Of Balance Amount Of Rs. 400/= Which Accused Did Prior To Registration Of FIR Against Him And Allotment Also Was Confirmed In The Next Meeting Of The Board.
12-No Clandestine Or "hidden Motive" Could Be Surfaced During Investigation Or Even During Trial For Smt. Neera Yadav To Favour Ashok Chaturvedi. Ipse Dixit Of PW6 Does Not Lead Even To Suspicion What To Say Of Proof Beyond Any Doubt.
13- Appellant Is A Lady Aged About 62 Years Of Age And She Is A Retired IAS Officer And She Had No Criminal Record To Her Credit. Incident Is Alleged To Have Occurred In 1994 And For Last 12 Years She Had Been Facing Trial.
14- C.B.I. Did Not Investigate The Minutes Of NOIDA Board Meetings Nor Made Any Other Member An Accused For Passing Resolutions Which Are Now Being Castigated.
15- Charge Of Criminal Conspiracy And Corruption Entails Serious Penal Consequences And Revolves On The Periphery Of Incarceration And Therefore Leaning In Favour Of Prosecution With Too Much Of Unwarranted Suppositions Will Not Yield To Justice. There Is A Very Thin But Well Demarcated And Illuminated Distinction Between Discretion And Abuse Of Power. Leaning Either Way May Lead To Undesirable Results.
16- Occurrence Had Occurred In The Year 1994 And Sixteen Years Has Lapsed Since Then And That Appellant Had Faced The Trial For Last Twelve Years.
17- Findings By The Trial Judge Regarding Deposit Of Reservation Money, Printing Of Small Advertisement, Preparation Of Joint Statement, All Are Nugatory As In It's Next Meeting NOIDA Board Members Had Confirmed The Allotment. Opinion By The Trial Judge That Board Was Not Informed Regarding Receiving Of Seven Applications Is Based On Pure Conjecture And Surmises. No Evidence Has Been Mentioned In The Impugned Judgment Regarding This Aspect Of The Matter Although Evidence Of Prosecution Witnesses Has Been Quoted In Extenso. Receiving Of Postal Application By The Officer Of Appellant Addressed To Her Only Is No Incriminating Circumstance As In Any View Any Postal Communication Addressed To An Individual , That Too To A Public Authority Has To Be Received By His/ Her Office. Joint Statement Prepared Was Singed By PW7 V.K. Joshi, PW8 A.S. Kumar, And PW9 G.C. Tiwari, Who All Have Not Been Prosecuted Or Made An Accused At All, And Hence Appellant Singularly Can Not Be Saddled With Any Liability In That Respect. Allotment Of Plots On The Day Of The Opening Is Also Without Any Consequence As There Were Only Two Applicants On That Day. Rest Of The Two Industrial Units Had Applied Much Later. Since Reduction Of Price Was The Decision Of NOIDA Board , Appellant Can Not Be Singled Out From Other Members Of The Board And Be Punished Criminally With Out Any Reason At All. Activities Known To Every One Prior To It's Execution Is No Conspiracy And If The Same Is Taken To Be A Conspiracy Then It Has To Be With Entire NOIDA Board And It's Employees.

In State Of M.P. Versus Sheetla Sahai : (2009) 8 SCC 617 It Has Been Held By The Apex Court As Under:-
"47. From The Materials Available On Record, It Is Crystal Clear That The Decision Taken Was A Collective One. The Decision Was Required To Be Taken In The Exigency Of The Situation. It May Be An Error Of Judgment But Then No Material Has Been Brought On Record To Show That They Did So For Causing Any Wrongful Gain To Themselves Or To A Third Party Or For Causing Wrongful Loss To The State.
48. Section 13 Of The Act Provides For Criminal Misconduct By A Public Servant. Such An Offence Of Criminal Misconduct By A Public Servant Can Be Said To Have Been Committed If In Terms Of Section 13(1)(d)(ii) (iii) A Public Servant Abuses Its Position And Obtains For Himself Or For Any Other Person Any Valuable Thing Or Pecuniary Advantage; Or While Holding Office As A Public Servant, Obtains For Any Person Any Valuable Thing Or Pecuniary Advantage Without Any Public Interest. Sub-section (2) Of Section 13 Provides That Any Public Servant Who Commits Criminal Misconduct Shall Be Punishable With Imprisonment For A Term Which Shall Be Not Less Than One Year But Which May Extend To Seven Years And Shall Also Be Liable To Fine.
49. Criminal Conspiracy Has Been Defined In Section 120-A Of The Indian Penal Code, 1860 To Mean :
"When Two Or More Persons Agree To Do, Or Cause To Be Done,-
(1) An Illegal Act, Or
(2) An Act Which Is Not Illegal By Illegal Means, Such An Agreement Is Designated A Criminal Conspiracy :
Provided That No Agreement Except An Agreement To Commit An Offence Shall Amount To A Criminal Conspiracy Unless Some Act Besides The Agreement Is Done By One Or More Parties To Such Agreement In Pursuance Thereof.
Explanation.- It Is Immaterial Whether The Illegal Act Is The Ultimate Object Of Such Agreement, Or Is Merely Incidental To That Object."
Section 120-B Of The Indian Penal Code Provides For Punishment For Criminal Conspiracy.
50. Criminal Conspiracy Is An Independent Offence. It Is Punishable Separately. Prosecution, Therefore, For The Purpose Of Bringing The Charge Of Criminal Conspiracy Read With The Aforementioned Provisions Of The Prevention Of Corruption Act Was Required To Establish The Offence By Applying The Same Legal Principles Which Are Otherwise Applicable For The Purpose Of Bringing A Criminal Misconduct On The Part Of An Accused.
51. A Criminal Conspiracy Must Be Put To Action Inasmuch As So Long A Crime Is Generated In The Mind Of An Accused, It Does Not Become Punishable. What Is Necessary Is Not Thoughts, Which May Even Be Criminal In Character, Often Involuntary, But Offence Would Be Said To Have Been Committed Thereunder Only When That Take Concrete Shape Of An Agreement To Do Or Cause To Be Done An Illegal Act Or An Act Which Although Not Illegal By Illegal Means And Then If Nothing Further Is Done The Agreement Would Give Rise To A Criminal Conspiracy.
Its Ingredients Are
(i) An Agreement Between Two Or More Persons:
(ii) An Agreement Must Relate To Doing Or Causing To Be Done Either (a) An Illegal Act; (b) An Act Which Is Not Illegal In Itself But Is Done By Illegal Means.
What Is, Therefore, Necessary Is To Show Meeting Of Minds Of Two Or More Persons For Doing Or Causing To Be Done Ah Illegal Act Or An Act By Illegal Means.
52. While Saying So, We Are Not Oblivious Of The Fact That Often Conspiracy Is Hatched In Secrecy And For Proving The Said Offence Substantial Direct Evidence May Not Be Possible To Be Obtained. An Offence Of Criminal Conspiracy Can Also Be Proved By Circumstantial Evidence.
In Kehar Singh And Ors. V. State (Delhi Administration), [1988 (3) SCC 609 At 731], This Court Has Quoted The Following Passage From Russell On Crimes (12th Edn. Vol 1) :

"The Gist Of The Offence Of Conspiracy Then Lies, Not In Doing The Act, Or Effecting The Purpose For Which The Conspiracy Is Formed, Nor In Attempting To Do Them, Nor In Inciting Others To Do Them, But In The Forming Of The Scheme Or Agreement Between The Parties. Agreement Is Essential. Mere Knowledge, Or Even Discussion, Of The Plan Is Not, Per Se Enough".

In State (NCT) Of Delhi V. Nayjot Sandhu @ Afsan Guru [(2005) 11 SCC 600], This Court Stated The Law, Thus :

"101. One More Principle Which Deserves Notice Is That The Cumulative Effect Of The Proved Circumstances Should Be Taken Into Account In Determining The Guilt Of The Accused Rather Than Adopting An Isolated Approach To Each Of The Circumstances. Of Course, Each One Of The Circumstances Should Be Proved Beyond Reasonable Doubt. Lastly, In Regard To The Appreciation Of Evidence Relating To The Conspiracy, The Court Must Take Care To See That The Acts Or Conduct Of The Parties Must Be Conscious And Clear Enough To Infer Their Concurrence As To The Common Design And Its Execution."

We May Also Notice That In Ram Narayan Popli V. CBI [(2003) 3 SCC 641], It Was Held:

"...Law Making Conspiracy A Crime Is Designed To Curb Immoderate Power To Do Mischief Which Is Gained By A Combination Of The Means. The Encouragement And Support Which Co-conspirators Give To One Another Rendering Enterprises Possible Which, If Left To Individual Effort, Would Have Been Impossible, Furnish The Ground For Visiting Conspirators And Abettors With Condign Punishment..."

In Yogesh @ Sachin Jagdish Joshi V. State Of Maharashtra [(2008) 6 SCALE 469], This Court Opined :

"23. Thus, It Is Manifest That The Meeting Of Minds Of Two Or More Persons For Doing An Illegal Act Or An Act By Illegal Means Is Sine Qua Non Of The Criminal Conspiracy But It May Not Be Possible To Prove The Agreement Between Them By Direct Proof. Nevertheless, Existence Of The Conspiracy And Its Objective Can Be Inferred From The Surrounding Circumstances And The Conduct Of The Accused. But The Incriminating Circumstances Must Form A Chain Of Events From Which A Conclusion About The Guilt Of The Accused Could Be Drawn. It Is Well Settled That An Offence Of Conspiracy Is A Substantive Offence And Renders The Mere Agreement To Commit An Offence Punishable Even If An Offence Does Not Take Place Pursuant To The Illegal Agreement."
Ex Facie, There Is No Material To Show That A Conspiracy Had Been Hatched By The Respondents."

In Angana Versus State Of Rajasthan: (2009) 3 SCC 767 Wherein Earlier View Of The Apex Court In Bhagwan Ram Shinde Gosai Versus State Of Gujrat : (1999) 4 SCC 421 Has Been Approved It Has Been Held By The Apex Court As Follows:-

"16. In The Case Of Bhagwan Rama Shinde Gosai V. State Of Gujarat (1999) 4 SCC 421, This Court Has Stated That When A Convicted Person Is Sentenced To A Fixed Period Of Sentence And When He Files An Appeal Under Any Statutory Right, Suspension Of Sentence Can Be Considered By The Appellate Court Liberally Unless There Are Exceptional Circumstances. The Court Has Observed :
"3. When A Convicted Person Is Sentenced To A Fixed Period Of Sentence And When He Files An Appeal Under Any Statutory Right, Suspension Of Sentence Can Be Considered By The Appellate Court Liberally Unless There Are Exceptional Circumstances. Of Course If There Is Any Statutory Restriction Against Suspension Of Sentence It Is A Different Matter. Similarly, When The Sentence Is Life Imprisonment The Consideration For Suspension Of Sentence Could Be Of A Different Approach. But If For Any Reason The Sentence Of A Limited Duration Cannot Be Suspended Every Endeavour Should Be Made To Dispose Of The Appeal On Merits More So When A Motion For Expeditious Hearing Of The Appeal Is Made In Such Cases. Otherwise The Very Valuable Right Of Appeal Would Be An Exercise In Futility By Efflux Of Time. When The Appellate Court Finds That Due To Practical Reasons Such Appeals Cannot Be Disposed Of Expeditiously The Appellate Court Must Bestow Special Concern In The Matter Of Suspending The Sentence. So As To Make The Appeal Right, Meaningful And Effective. Of Course Appellate Courts Can Impose Similar Conditions When Bail Is Granted."

In R. Sai Bharathi Versus J. Jayalalitha: (2004) SCC ( Cr) 377 , Which Decision Has Similar Facts It Has Been Held By The Apex Court As Follows:-

"35. The Circumstances Under Which The Properties Were Purchased By M/s. Jaya Publications And M/s. Sasi Enterprises Cannot Be Treated As One Obtained In The Circumstances Arising In Section 13(1)(d). The Facts Established In The Case Point Out That The Properties Are Not Purchased By Corrupt Or Illegal Means Or By Abusing The Official Position As Public Servant To Obtain Pecuniary Advantage Discarding Public Interest. The Purchase Was Effected Through Open Sales Held By TANSI. The Right To Sell The Properties In Question Was Available With The Corporation Which Chose To Do So In Favour Of M/s. Jaya Publications And M/s. Sasi Enterprises. It Is Not Established That A-1 Or Any Other Person Obtained For Herself Any Valuable Thing Or Pecuniary Advantage By Abusing Her Position As Public Servant. On The Other Hand, As Stated Earlier, The Properties In Question Were Sought To Be Sold From Time To Time And Pursuant To Such Steps Taken The Properties Had Been Sold To Two Firms In Question. The Sale Has Been Held Pursuant To Various Resolutions Of The Government Since 1985 And That The Putting Up Of The Properties In Question For Sale Itself Was Not Against Any Public Interest. When The Two Firms Of Which A-1 Is A Partner Offered Appropriate Price The Same Having Been Accepted, It Cannot Be Said That It Has Resulted In Obtaining Any Pecuniary Advantage Or Valuable Thing By Abuse Of The Official Position. If The Properties In Question Were Sold By TANSI In Public Interest, The Obtaining Of The Same Through Purchase In Such A Transaction For Valuation Consideration Which Does Not Fall Below Market Value Does Not Come Within The Scope Of Section 13(1)(d). Thus, The Charge Under Section 13(1)(d) Is Not Established And We Concur With The Findings Recorded By The High Court In This Regard.
36. Offence Under Section 13(1)(c) Of The Prevention Of The Corruption Act Would Arise If Any Public Servant Dishonestly Or Fraudulently Misappropriated Or Otherwise Converted For His Own Use Any Property Entrusted To Him Or Under His Control As A Public
Servant Or Allowed Any Other Person To Do So. In The Present Case, It Cannot Be Said That The Accused Acted Dishonestly Because There Was No Wrongful Gain Or Wrongful Loss And Hence It Cannot Be Said That They Acted Fraudulently. It Cannot Also Be Said That The Accused Has Converted The Property Of TANSI Inasmuch As Property Was Sold Pursuant To A Transparent Tender Process Which Is Not Shown To Be Vitiated In Any Manner. The Property In Question Belonged To TANSI A Government Company And It Was Neither Trust Property Nor Was It Entrusted To Or Under The Control Of The Chief Minister Or Any Minister. Hence, Section 13(1)(c) Of The Prevention Of Corruption Act Is Not Attracted To The Facts Of The Case.
37. The Only Evidence Against A-6 Is That He Spoke About The Disposal Of File Relating To Sale Of Land In Question To Be Expedited. This Fact Is Spoken To By PW-12, PW-12 Stated In Her Evidence That She Voluntarily Appeared Before The Magistrate And Gave A Statement Without Being Sponsored By The Investigating Officer Though PW23, Investigating Officer Stated Tha He Gave A Requisition For Recording Her Statement. A-6 Did Not Participate In The Meeting Held On 14-10-1991 Nor Did He Participate In The Meeting Held On 6-11-1991. The High Court Did Not Accept The Evidence Of PW-12. This Evidence Does Not In Any Manner Advance The Case Of The Prosecution To Establish That A-6 Has Committed Any Offence.
38. Regarding The Charge Against A-3, Who Was The Chairman-cum-Managing Director Of TANSI From 1-8-1991 To 10-7-1992, We Have To Bear In Mind Certain Facts. The Decision To Accept The Offer Of Jaya Publications Was That Of The Board And Not Of A-3 Alone. PW8 The General Manager And Company Secretary Of TANSI Admitted That All The Decisions Were Taken By The Sub-Committee And No Decision Was Taken Independently By Any Individual And A-3 Followed The Decision Of The Sub-Committee, Which Was Approved By The Board. Therefore, There Was No Evidence To Show That A-3 Acted Against The Decision To Favour Jaya Publications. The Sale Of Land To Jaya Publications Is A Collective Decision Of The Board And Not Of Any Individual, The Price On Which The Land Was To Be Sold And The Price On Which The Buildings Were To Be Sold Were Decided By The Board Of Directors To Which The Government Gave Approval And Thus There Was No Independent Assignment To A-3 In Deciding The Matter Nor Did He Suppress Any Document By Not Placing Them Before The Board Of Directors.
39. A-5, Special Deputy Collector (Stamps), Only Performed Statutory Duty In Fixing The Value Of The Property In Question At Rs. 3 Lakhs Per Ground After Notice To The Concerned Parties. The Matter Was Statutorily Referred To A-5 For Fixing The Market Value Of The Property And Thereafter A-5 Fixed The Market Value Of The Property After Taking Into Consideration The Relevant Factors. A-5 Took Into Account The Fact That In The Vast Extent Of About 2 To 3 Sq. Kms. The Land Purchased By Jaya Publications Was - Km. Away From Grand South Trunk Road And King Institute Was At The Eastern Boundary Of The Land In The Industrial Estate And The Land Value Was Only Rs. 3 Lakhs Per Ground In The Front Portion And About Rs. 2 Lakhs Per Ground In The Extreme North Because Of The Threat Of Inundation Of River Adayar During Flood Season. Ex.P-6 Shows That A-5 Had Taken Into Consideration Several Verdicts Of The Madras High Court Which Say That The Guideline Was Not Final And It Was Only A Preliminary Exercise To Find Out The Real Market Value Of A Particular Property And He Also Compared The Other Sales And Then Arrived At The Value. He Referred To Ex.D-10 Which Is A Sale Deed By Which An Extent Of 6695 Sq. Ft. Of Land In Block No. 6 At Adayar Village Was Sold On 12-10-1990. The Vendor Is Paramount Pollution Control Limited. The Value Per Ground Is Shown To Be Rs. 99,984/-. The Question Of Valuation Was Referred Under Section 47-A Of The Stamp Act And A-5 Fixed The Value Of The Property At Rs. 2,17,008/- Per Ground. Another Document No. 1442 Of 1991, Which Was Referred Under Section 47-A Of The Stamp Act, Was Sale By Wazir Begum To Capro Industries And Through This Transaction An Extent Of 5393 Sq. Ft. Of Land Was Sold Which Is About Two Ground. The Executant In The Deed Had Shown The Value Of Land Per Ground As Rs. 1,89,120/- And A-5 Fixed The Value At Rs. 3 Lakhs Per Ground But In The Course Of His Proceedings - Ex. P-6 - Had Referred To This Documents But Only Made A Factual Error In Stating That The Property Was Sold To SIDCO, Ex.P-68 Is A Deed Registered On 31-5-1991 By Which An Extent Of 5538.5 Sq. Ft. Of Land Was Transferred. The Executant Had Valued The Land At Rs. 2,07,984/- Per Ground And On Being Referred Under Section 47-A Of The Stamp Act, A-5 Fixed The Value Of The Land At Rs. 2,78,184/- Per Ground. These Three Sale Deeds Related To The Sale Of Property Falling Within Block No. 6 Of Adayar Village And The Properties Covered By The Said Documents Were Smaller In Extent. Since The Maximum Extent Being 2.78 Acres Which Was Conveyed Under Ex. D-10 And Even For That Property A-5 Had Fixed Rs. 2,17,008/- As Value Per Ground And, Therefore, He Held That The Value Fixed By A-5 At Rs. 3 Lakhs Per Ground For The Property In Dispute Could Not Be Stated To Be An Under Valuation."

Rapping Up This Order, Entire Conspectus Of Above Analysis, Facts And Circumstances Of The Case, Evidences Of Witnesses Lead In The Trial To Establish Appellant's Guilt, Her Background And Nature Of Her Involvement And The Role Attributed And Assigned To Her Coupled With The Charge Leveled Against Her And The Feeble Nature Of Findings Recorded Against Her By The Trial Judge, Remote Possibility Of Her Appeal Being Decided In Nearby Future, When The Dockets Of This Court Is Saddled With Thousands Of Appeal Being Pending, Tilts The Balance Of Discretion In Her Favour During Pendency Of Her Instant Appeal In This Court.
In Above View Of The Matter Bail Prayer Of Appellant Smt. Neera Yadav U/S 389 Cr.P.C. During Pendency Of Her Instant Appeal In This Court Is Allowed.
Let Appellant Smt. Neera Yadav Be Released On Bail In Special Trial No. 21 Of 2002, C.B.I. Versus(1) Neera Yadav (2) Ashok Chaturvedi, U/S 13 (1) (d) And Section 13(2) Prevention Of Corruption Act And 120 B, IPC, PS C.B.I / A.C.U ( Seven), New Delhi Decided By Special Judge, Anti Corruption, Ghaziabad, On Her Furnishing A Personal Bond Of Rs. 5 Lacs With Two Solvent Sureties Each In The Like Amount To The Satisfaction Of Trial Judge Concern.
Appellant Is Permitted To Deposit Half Of The Amount Of Fine (Rs. 25000/=) With The Trial Judge Within A Period Of A Week From Today. Realization Of Rest Of The Amount Of Fine Awarded To Her Shall Remain In Abeyance During Pendency Of Her Instant Appeal In This Court.

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