UNION OF INDIAversusMADAN MOHAN BANERJEE AND ORS.

                                                                        ALS-27-2025(J) C3.doc




                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                         APPLICATION FOR LEAVE TO APPEAL (STATE) NO. 27 OF 2025

HUSENBASHA
RAHAMAN               Union of India through                       )
NADAF
                      Central Bureau of Investigation              )
Digitally signed by
HUSENBASHA
                      Anti Corruption Branch,                      )
RAHAMAN NADAF
Date: 2026.08.24
                      Plot No. C-35, A, ‘G’ Block,                 )
20:27:30 +0530
                      Bandra East, Mumbai-400098                   )   ...Applicant

                              Versus

                      1. Madan Mohan Banerjee                      )
                         O/O. Assistant Estate Manager             )
                         Estate Manager Old CGO Building           )
                         Annex 101 M.K. Road,                      )
                         Mumbai 400020                             )
                         Residence of Jagat Berth Post Shri Palli, )
                         Bardhaman, West Bengal- 713103            )   ...Respondent/A-1

                      2. Shri Mukesh K. Bhanushali                 )
                         R/o. Om Building, 94-95, 1st Floor        )
                         Chitranjan Nagar, CHS, D-13-95            )
                         Vidhyavihar East Mumbai-400077            )   ...Respondent/A-2

                      3. Shri Narayan Mahadu Kanade                )
                         R/o 203, Shiv Parvati, CHS,               )
                         Sector 21, Nerul East, Navi Mumbai        )   ...Respondent/A-3

                      4. The State of Maharashtra                  )   ...Respondent


                                                      ***
                      Mr. Amit K. Munde, Special Public Prosecutor a/w Mr. Jai Vohra &
                      Mr. Shantanu Nakashe for the Applicant - CBI, ACB, Mumbai.
                      Mr. Eknath V. Sawant a/w. Mr. Harish Zende, Mr. Tejasvee Lad & Ms.
                      Gauri Parab for Respondent No. 1.
                      Mr. Pranil Sonawane a/w. Mr. Krishna Shukla i/b KLS Legal for
                      Respondent Nos. 2 & 3.


                      Husen                                 1
                                                      ALS-27-2025(J) C3.doc




Ms. Sharmila Kaushik, APP for Respondent No.4-State.

                                       CORAM : M.M. SATHAYE, J.
                               RESERVED ON : 30th JULY, 2026
                            PRONOUNCED ON : 21st AUGUST, 2026


JUDGMENT :

1.      The Appellant-Applicant has filed this application seeking leave
to file appeal against the Judgment and Order dated 27.03.2018
passed by Special Judge for CBI, Greater Mumbai in CBI Special Case
No.22 of 2011. By the said impugned order, the present Respondent
Nos.1 to 3 (accused Nos.1 to 3) are acquitted of offences punishable
under Sections 120B, 420 & 406 of Indian Penal Code, 1860 (‘IPC’,
for short) and under Sections 13(2) r/w. 13(1)(d) of Prevention of
Corruption Act, 1988 (‘PC Act’, for short).

2.      The case of the prosecution, in short is as under.

2.1.    That during 2006 to February 2009 Respondent-accused No. 1
was posted as Assistant Estate Manager in the Office of Estate
Manager, Mumbai. That Respondent-accused No. 2 was allotted Shop
No. 7 in the Convenient Shopping Center, CGS Colony, Antop Hill,
Mumbai on license basis. That Respondent-accused No. 3 was
allotted Shop No. 9. That one Jecob Victor was allotted Shop No. 8.
This Mr. Jecob Victor is not an accused.

2.2.    That the Respondents-accused hatched a conspiracy by which
accused No. 2 took possession of Shop Nos. 8 and 9 without consent
of the competent authority and accused No. 1 by abusing his official

Husen                                  2
                                                   ALS-27-2025(J) C3.doc




position granted permission to accused No. 2 to make temporary
construction which was later converted into permanent construction
where accused No. 2 ran ‘Micro-Air Diagnostic Health Center’. As per
Office Order dated 06.12.2006 of the Deputy Director of Estates, New
Delhi, Respondent-accused No. 1 was expected to take action of
eviction and cancellation of allotment. However, he did not take any
action on the report of CPWD and by his acts and omissions, caused
wrongful gain to accused No. 2 and corresponding wrongful loss to
Government of India.

3.      On completion of investigation and after obtaining sanction
from the competent authority, charge sheet was filed. The
Respondents-accused pleaded not guilty and claimed to be tried.
Respondent-accused No. 1 has pleaded innocence and false
implication. According to him, the powers of Estate Manager as well
as Estate Officer were not delegated to him. According to
Respondents-accused Nos. 2 and 3, they were falsely implicated.

4.      The prosecution examined as many as 21 witnesses. The
learned Special Judge of the CBI has, after hearing the parties and on
appreciation of evidence has acquitted the Respondents-accused of all
offences.

5.      Learned counsel Mr. Munde appearing for the Appellant-
Applicant submitted as under.

5.1.    That the action and omission of Respondent-accused No. 1
about the illegal construction and illegal transfer of Shops amongst
the accused amounts to cheating and breach of trust. That inaction of

Husen                                3
                                                    ALS-27-2025(J) C3.doc




Respondent-accused No.1 amounts to misconduct, as he did not take
any action against illegal construction despite knowing it and kept
mum.

5.2.    That illegal construction is proved and it amounts to loss to
central government.

5.3.    That Respondent-accused No. 3 by giving his gala/Shop to
accused Respondent No. 2, has aided and abetted the offence.

5.4.    That the act of Respondent-accused No. 1 of letting accused
No. 2 raise unauthorised construction as well as the act of accused
No. 3 sub-letting the Shop to accused No. 2 has resulted into cheating
and dishonest inducement for delivery of property. That omissions by
Respondent-accused No. 1 amounts to criminal misconduct by public
servant.

5.5.    That PW-1 had sought demolition of construction and
cancellation of allotment and it was the duty of the Respondent-
accused No. 1-Estate Manager to check whether the allottee was
using the property or somebody else.

5.6.    That PW-11, who was an Executive Engineer at the relevant
time, has stated that in his reply letter to Respondent - accused No.1,
he had mentioned about encroachment made by allottees of Shop
Nos. 7, 8 and 9 and certain photographs were sent. He submitted that
the Assistant Manager after visiting the site, informed that allottees
had constructed temporary wall around the Shop and had also
prepared temporary AC sheet roof.


Husen                                  4
                                                    ALS-27-2025(J) C3.doc




5.7.    That Respondent-accused No. 2 made illegal encroachment by
constructing permanent wall without taking permission and without
payment of requisite fees. That Respondent-accused No. 1 granted
permission to Respondent-accused No. 2 vide letter dated 29.07.2008
for temporary construction without renewal of licence and without
enhancement of rent.

5.8.    That Respondent-accused No. 2 conspiring with Respondent-
accused No. 3 took possession of Shop Nos. 8 and 9 without consent
of     competent    authority and   Respondent-accused      No.     3 has
dishonestly sub-let Shop No. 8 to Respondent-accused No. 2 in
violation of legal contract and these acts and omissions amount to the
offences alleged.

6.       On the other hand, learned counsel for Respondent-accused
No. 1 supported the impugned order of acquittal and submitted as
under.

6.1.    He submitted that no loss to central government has been
proved. Breach of trust has not been proved. Cheating has not been
proved and above all, the prosecution has not proved any monetary
benefit to the Respondent No. 1.

6.2.    That the order of acquittal is well reasoned, taking most
probable view and therefore interference is not called for.

6.3.    That Respondent No. 1 has been made scapegoat by the
officers involved and mere suspicion cannot serve as evidence.



Husen                                 5
                                                    ALS-27-2025(J) C3.doc




6.4.    That this Court should be slow to interfere because the trial
Court had the advantage of seeing the witnesses. That presumption
of innocence has been verified by the judgment of acquittal.

6.5.    Relying on Office Memorandum (D-9-Exh-22), he submitted
that it is the CPWD which is responsible not only for detecting and
reporting but also for preventing and removing unauthorised
construction in government accommodation and this fact has been
admitted by various prosecution witnesses. He relied on following
judgments in support of his case.

i.      Chandigarh Administration, Chandigarh Vs. Dharam Singh AIR
        1985 SC 1671.
ii.     State (Govt. of Delhi) Vs. Mr. Rajbir Singh and Ors. 2002 CRILJ
        3882.
iii.    Delhi Race Club (1940) Ltd. and Ors. Vs. State of Uttar
        Pradesh and Anr. AIR 2024 SC 4531.


7.      Learned counsel for Respondent-accused Nos. 2 and 3
submitted as under.

7.1.    That Respondent Nos. 2 & 3 are private individuals and
sections of PC Act are not applicable to Respondent Nos. 2 and 3.

7.2.    That Respondent-accused No. 3 permitted Respondent-accused
No. 2 to use the Shop and there is no illegality committed therein as
Respondent-accused No. 2 was holding right as lessee, which was
valid for 30 years and there was no default of payment of rent. That
Clause 6 of the document permitted addition and alteration or
construction by payment of extra license fees.


Husen                                 6
                                                      ALS-27-2025(J) C3.doc




7.3.    That ingredients of the offences including Section 420 of IPC,
are not made out.

7.4.    That on 29.07.2008, permission was granted with condition of
undertaking by Respondent-accused No.1.

7.5.    That case of conspiracy and cheating are not at all made out
against Respondent Nos. 2 and 3.

7.6.    That this is nothing but a civil case to which colour of criminal
case is given. That the Public Premises (Eviction Of Unauthorised
Occupants) Act, 1971 (‘PPE Act’, for short) takes care of the issues
involved in the present case, however, till filing of this criminal case,
no civil action was taken.

7.7.    He relied on the copy of License Deed, Allotment letter and
recent Rent fee receipt, Office Memorandum dated 26.04.2005 and
judgment of Vijay Kumar Ghai and Ors. Vs. State of West Bangal and
Ors. (2022) 7 SCC 124 in support of his case.

                         REASONS AND CONCLUSION

8.      I have considered the rival submissions and perused the record.

9.      I have perused the depositions of various witnesses. It is
interesting to note that for the offences alleged, the Applicant has
examined as many as 21 witnesses involving many witnesses about
whom no arguments were advanced while seeking leave.

10.     Let us see what the witnesses have stated in short.


Husen                                  7
                                                    ALS-27-2025(J) C3.doc




11.     PW-2 Mr. Hemant Kumar is a Junior Engineer with CPWD, who
has reported to his superior about illegal construction around Shop
No. 7. He has admitted that the alleged illegal construction is
adjacent to the building of his superior's office. He has admitted that
he has no documentary evidence to show what was legal construction
of the said Shop. He has admitted that he is not aware as to whether
original plan of the shopping complex is submitted with CBI. He has
admitted that he had not supplied copy of construction of the
shopping complex. He has further admitted that he had not
mentioned in his letter about taking photographs in digital camera.
He has admitted that he has not handed over the digital camera/chip
or memory card to CBI.

12.     PW-2 has also admitted that nature of duty of CPWD is to
prevent, detect, report, remove, demolish unauthorised construction
on open land or government accommodation. He has further
admitted that his department has power to demolish illegal
constructions. He has also admitted that there are many illegal
hutments in the Antop Hill Government Colony including a temple
situated at the back side of building No. 87, which is illegal. He has
admitted that said temple and other illegal constructions/hutments
are in his jurisdiction, which are not removed. He has admitted that
except giving intimation, he has not taken any other steps. He has
admitted that illegal construction can be stopped by Municipal
Corporation, however, he has not given any intimation to Municipal
Corporation. On being shown Circular Exh-22 issued by Ministry of
Urban Development dated 26.04.2005, he has admitted that as per


Husen                                8
                                                   ALS-27-2025(J) C3.doc




said Circular, CPWD is responsible not only for detecting and
reporting, but also preventing and removal of unauthorised
construction in government accommodation.

13.     PW-2 has further admitted that when he had visited the said
Shop, he was not carrying any plan. He has admitted that he has not
verified from any department whether the person carrying out
construction had taken permission or not. He has admitted that
without verifying about permission he had informed his superior
officer. He has admitted that he has not verified lease agreement of
Shop No. 7. He has further admitted that on his letter Exh-26,
(intimating alleged illegal construction) there is no seal of the
department and sanction plan/other documents are not annexed to
the same. He has admitted that before reporting about alleged illegal
construction, he has not seen original plan. He has further admitted
that no panchnama was drawn while taking the photographs
submitted by him.

14.     PW-1 is an Assistant Engineer to whom PW-2 had reported
about alleged illegal construction. This witness has admitted that the
said Shop No. 7 is about 15 feet away from his own building. He has
admitted that nature of his job was to prevent illegal construction in
the colony and he had the power to demolish illegal construction
after taking permission from the superiors. He has also admitted that
he is not aware as to whether Executive Engineer has been appointed
and notified as a Estate Officer. He has also admitted that no earlier
plan (showing original construction) was submitted to CBI or
Executive Engineer. He has also admitted that he has not stated

Husen                                9
                                                        ALS-27-2025(J) C3.doc




before the CBI officer that his Junior Officer (PW-2) was with him
when he visited the said Shop and took photographs. Though
photographs taken are given Exh-29 (Colly), they were given subject
to objection on the ground that digital camera and SD card are not
produced before the Court.

15.     PW-3 is the Accountant in Estate Manager's office who has
brought on record that Respondent-accused No. 1 Mr. Banerjee
worked     as   ‘In-charge   Estate   Manager’   from      15.02.2007           till
07.05.2007 which was for less than 3 months’ time. She has further
stated that after retirement of one Mr. Jagdishlal, the Respondent-
accused No. 1 had taken charge as Estate Manager in 01.07.2008.
She has also admitted that the license fee in respect of Shop No. 9
was from March 1988 till September 2009, license fee for Shop No. 7
was from December 2002 till September 2009 and license fee for
Shop No. 8 was from February 1988 till September 2009.

16.     This witness PW-3 has admitted that at the time of incident,
the dues of Shop Nos. 7 to 9 were paid. She has also admitted that
the earlier dealing officer Mr. Dhamba had not brought to the notice
of his superiors about dues in respect of Shop No. 9, but Respondent-
accused No. 1 had issued letters in that respect. This witness has also
admitted that correspondence was going on in respect of Shop Nos. 7
to 9 about ‘temporary roof, water and sanitary connection’ and
according to her, such permission was not given and therefore,
question of extra license fee did not arise. She has admitted that
removal of unauthorised construction need not follow cancellation of
allotment and eviction of occupant.

Husen                                  10
                                                      ALS-27-2025(J) C3.doc




17.     PW-4 and PW-5 are Mechanic and Sub-Divisional Engineering
from Telephone Company. It is not explained for what purpose these
witnesses are examined.

18.     PW-6 is Lower Division Clerk in the Estate Manager Office. He
was examined for proving certain correspondences made with the
office of the Estate Manager.

19.     PW-7 is the Director of Estates who is the sanctioning authority.

20.     PW-8 is the is a Bank employee, who is examined for proving
vouchers and pay orders issued in favour of the Estate Manager.

21.     PW- 9 is the Ticket Collector on railway station, who
accompanied a CBI officer during his visit to a nursing home, where
certain photographs were taken and panchnama was drawn.

22.     PW-10 is an Assistant Grade-II (Depot) in Food Corporation of
India who was asked to accompany the CBI officer who had gone to
the office of Respondent No. 1 accused and in whose presence the
almirah and drawer of Respondent No. 1 accused was searched and
panchnama was drawn.

23.     PW-11 is an Executive Engineer with CPWD who has stated
that in reply to letters given By Respondent No. 1-accused, he had
mentioned about encroachment made by allottees of Shop Nos. 7, 8
and 9 and along with reply he had sent some photographs, which
were taken by the Assistant Engineer. This witness claims to have
requested the Assistant Estate Manager to cancel the allotment. He


Husen                                  11
                                                    ALS-27-2025(J) C3.doc




has admitted in cross-examination that he has not come across any
letter addressed to the allottee of Shop No. 7 by Assistant Estate
Manager permitting him to make temporary construction. He has
admitted that he has not seen lease deed of Shop Nos. 7, 8 and 9. He
has further admitted that there was unauthorised construction in all
the shopping centres. He has further admitted that there were 5
Assistant Engineers and 16 Junior Engineers working under him. He
has stated that he does not remember the date on which and time at
which, he had visited Shop No. 9.

24.     PW-12 is an Executive Engineer, who has stated that he has
written letter to Estate Manager in respect of encroachment of illegal
construction activity. This witness has admitted that he has received
the knowledge of alleged illegal construction by accused No. 2 only
from Mr. Chidre (Asst. Engineer) and not otherwise.

25.     PW-13 is a peon in CPWD who used to receive letters from
other offices. He has only stated that he has written about delivery of
letters to Estate Manager. It is not explained why this witness was
examined.

26.     PW-14 is an Upper Division Clerk in the Account Section of
Estate Manager's Office. He is examined to prove certain letters
issued by Respondent No. 1-accused about permission. This witness
has admitted that he has no personal knowledge regarding the
contents of the documents shown to him including the letters.

27.     PW-15 is an Assistant Engineer with CPWD, who has issued
letter to Executive Engineer about encroachment in the shopping

Husen                                12
                                                     ALS-27-2025(J) C3.doc




complex. This witness has admitted that during his tenure, there was
unauthorised constructions made by allottees of all the Shops.

28.     PW-16 is a Legal Assistant in the Office of Estate Manager who
has admitted in cross-examination that the Estate looked after by
Estate Manager comes under the provisions of PPE Act.

29.     PW-17 is an earlier Estate Manager, who has stated that he
does not remember whether he dealt with file of Shop No. 7. This
witness was not cross examined. It is not explained for what purpose
this witness was examined.

30.     PW-18 is an Assistant Director (Market), Director of Estates. He
had stated that Exhibit 102 is the letter addressed by Respondent No.
1-accused to the Deputy Director, Mr. V. P. Gupta asking for
permission for temporary roof, sanitary and water connection in Shop
No. 7 and this letter was replied by the witness. This witness has
stated that under his reply, it was informed to Respondent No. 1 that
‘there was no specific guidelines in the matter’. He has also stated
about letter from Respondent No. 1-accused to Deputy Director
Estates, informing that concerned Shopkeeper had given layout plan
‘for temporary construction of roof, water and sanitary connection’
and that Shopkeeper was being provisionally permitted to carry out
temporary construction of roof, water and sanitary connection. This
witness has admitted that he does not remember whether any action
was taken in consequence of such letter.

31.     From the evidence of this witness PW-18, it is clear that
Respondent No. 1 was informed from the office of deputy director

Husen                                 13
                                                     ALS-27-2025(J) C3.doc




that there was no specific guidelines about temporary roof, sanitary
and water connection and no action was taken after information was
given    about   provisional   permission   to   carry   out    temporary
construction of roof, water and sanitary connection.

32.     PW-19, is a Sub Inspector with CBI, who had investigated RC
No. 11 of 2009. It is not explained how this RC No. 11 of 2009 is
connected to present Special Case No. 22 of 2011. He has stated that
he has collected documents pertaining to Shop Nos. 7, 8 and 9. He
has admitted that when map was prepared in respect of the structure
of concerned Shops, the original map of Shop Nos. 7, 8 and 9 was not
with him. He has further admitted that during investigation he had
not collected the original map of the Shops. He has also admitted
that when map was prepared, he had no document to verify whether
there was any change in permanent structure. He has also admitted
that Respondent No. 1-accused had informed the Head Office of
Estate Department that applications were received for permission to
make temporary construction. He admitted that Respondent No. 1
had informed CPWD that such applications are received. He has also
admitted that with respect to temporary construction, Respondent-
accused No. 1 has not practiced any deception. He has admitted that
though he investigated regarding losses suffered by the Estate
Department in this case, but quantum of the loss could not be
ascertained.

33.     PW-20, is a Police Inspector with CBI, who had visited the said
Shops for inspection during investigation of Crime No. RC-BA1-2009-
A006. Once again, it is not explained how this case connected to

Husen                                 14
                                                   ALS-27-2025(J) C3.doc




present Special Case No. 22 of 2011. This witness has admitted that
documents were not produced before him for verification of
ownership of the nursing home visited. He further admitted that such
documents were not called for during investigation. This witness has
volunteered that he was not the Investigating Officer of the case
concerned. He has admitted that original plan of nursing home was
not seen by him.

34.     PW-21 is an Inspector in CBI in RC No. 06 of 2009. This once
again appears to be some different case. He had stated that he
searched the office of Estate Manager and seized certain files in
respect of Shop Nos. 7, 8 and 9. He has admitted that the files which
are shown to him do not bear his signature in connection with the
seizure. He has admitted that he has seized 58 bunch of papers and
files. He has admitted that he has seized two bunches regarding
permission of construction of Shop Nos. 7 and 8.

35.     It is not explained on behalf of the Applicant as to why
Investigating Officers connected with other cases were examined in
the present case.

36.     In view of above evidence discussed, it is clear that no
monetary gain has been proved to have been received by the
Respondent No. 1. So far as allegation of illegal construction is
concerned, it is important to note that photographs produced in
support of the case of illegal construction are not proved. Many
witnesses have admitted that original map of Shops are not produced
or seen by them. Therefore, there is no reference point to call the


Husen                               15
                                                      ALS-27-2025(J) C3.doc




construction illegal. Therefore, unauthorised nature of construction
alleged to have been carried out by the Respondent-accused No.2 can
not be assumed to be proved beyond reasonable doubt.

37.     It is informed that action under PPE Act for eviction of
Respondent Nos. 2 to 4 was not undertaken before the present
criminal case is filed. Present stage of eviction proceedings are not
explained.

38.     It has come on record that Respondent No. 1 was only holding
charge for 2 months and 22 days and there is no evidence about till
what time Respondent No. 1 was holding the charge after
01.07.2008.

39.     Following chronology is crucial to note :


 Date            Event                              Material available
 15.02.2007      Respondent-accused No. 1 took PW-3 has admitted
                 charge as Estate Manager
 07.05.2007      Respondent-accused No. 1 left PW-3 has admitted
                 charge of Estate Manager
 08.05.2007      Jagdishlal took charge as Estate PW-3 has admitted
                 Manager
 12.02.2008      Executive Engineer (PW-12) PW-12 has admitted
                 informed    Estate   Manager
                 regarding              alleged
                 encroachment in question by
                 Respondent-accused No. 2
 30.06.2008      Jagdishlal retired.                PW-3 has admitted
 01.07.2008      Respondent-accused No. 1 took PW-3 has admitted
                 charge as Estate Manager
 29.07.2008      Alleged permission given by        Deposition of PW-11

Husen                                  16
                                                     ALS-27-2025(J) C3.doc




 Date            Event                             Material available
                 Respondent-accused No. 1
 Till            Licence fees of all three Shops   PW-3 has admitted
 September       were paid
 2009



40.     Therefore, it is clear that when the alleged encroachment was
reported, the Respondent-accused No. 1 was not even holding charge
as Estate Manager. Mr. Jagdishlal was the concerned person. Another
person involved i.e. Mr. Jecob Victor, who was allottee of Shop No. 8,
is also not made accused. Mr. Jagdishlal and Mr. Jecob have not been
made accused for reasons best known to Applicant. This aspect about
not making Jagdishlal as accused is also considered by the learned
Special Judge in paragraph No. 30 of the impugned judgment.

41.      PW-11 who was posted as Executive Engineer, has been
examined to prove various letters issued by Respondent-accused No.
1 to the Deputy Director of Estate and to the said witness in respect
of permission for temporary roof, water and sanitary connection in
Shop Nos. 7 and 8. The letters are at Exhibits-64, 65, 66 and 69. This
witness has stated that in response to these letters, he had mentioned
about encroachment made by allottees of Shop Nos.7, 8 and 9 and
some photographs were sent. This witness has stated that Exh-73 is a
copy of letter addressed to the Deputy Director of Estate by
Respondent-accused No. 1, informing that he had given ‘provisional
permission’ to allottee of Shop No. 7 for construction of temporary
roof, water and sanitary connection. This witness has admitted that
he had not come across any letter addressed to the allottee of Shop

Husen                                 17
                                                    ALS-27-2025(J) C3.doc




No. 7 by the Assistant Estate Manager informing that he was
permitted to make temporary construction. This witness has also
admitted that he has not seen the lease deed of Shop Nos.7, 8 and 9.

42.     It is important to note that the Respondent-accused No.1 had
made communication with the Deputy Director Exh-102, asking
about policy in respect of permission sought by accused No. 2 and it
has come on record that PW-18 had replied vide Exh.-110 that there
is no policy in place.

43.     It has further come on record that Exh.-101 issued by
Respondent-accused No. 1 to the Executive Engineer CPWD asking
him to report whether any structural change will occur by
construction of accused No.2 and to inform any additional licence
fees, to which the Executive Engineer had responded that it is not
within his purview.

44.     It has further come on record that letter Exh.-92 written by
Respondent-accused No. 1 to PW-12 Executive Engineer asking to
explore the possibility of the construction of temporary roof, sanitary
and water connection in Shop No. 7 of without structural change.

45.     On 10.07.2008, by letter at Exh.-66, Respondent-accused No.1
had asked Respondent-accused No.2 to give an undertaking that he
will pay additional license fee and or permanent deposit whatsoever
fixed by the Government.

46.     By letter dated 31.12.2007, Exh.-91 PW-12 Executive Engineer,
CPWD informed the Estate manager that almost all Shops in the


Husen                                18
                                                     ALS-27-2025(J) C3.doc




shopping complex were sublet and action could be taken against
them.

47.     The copy of license deed relied upon by the advocate for
Respondent-accused Nos. 2 and 3 is perused. It has come on record
that the license fees for all the accused was paid upto September
2009. The alleged information about alleged construction was given
in February 2008 and alleged permission is given by Respondent-
accused No. 1 in July 2008. Therefore, at that time the licence was in
existence. Clause 6 of the licence clearly provides that if any addition
or alteration or construction is required by licensee, a request to that
effect may be made in writing to the Directorate of Estates / Estate
Manager, who may consider the same on such terms and conditions
as may be deemed appropriate. From the above discussion, it is clear
that such communications were made with the Directorate of the
Estates not only by the Estate Manager but by the allottee-accused
No. 2 also. The response to such communications given from the
office of the Directorate was that there is no policy in place. Since the
Respondents-accused Nos.1 and 2 had asked for guidance /
permission from the Directorate of Estates, it cannot be said that
Respondent-accused No. 1 has misappropriated or converted to his
own use the property of the government or dishonestly used it or
disposed of it or has cheated the government dishonestly inducing
the government to deliver the property to any person. Admittedly,
Respondent Nos. 2, 3 and 4 were allottees from the government and
therefore, the delivery of possession cannot be said to be the result of
any inducement.


Husen                                 19
                                                        ALS-27-2025(J) C3.doc




48.     In Delhi Race Club (Supra), the Hon'ble Supreme Court, while
dealing with Sections 406 and 420 of IPC, as in the present case, has
observed as below. This judgment directly supports the Respondents.

        “30. xxxx
        Thus, in case of criminal breach of trust, the offender is lawfully
        entrusted with the property, and he dishonestly misappropriated the
        same. Whereas, in case of cheating, the offender fraudulently or
        dishonestly induces a person by deceiving him to deliver any
        property. In such a situation, both the offences cannot co-exist
        simultaneously.”
                                                        (Emphasis supplied)


49.     Many witnesses have admitted that in the entire shopping
complex many allottees have raised unauthorised constructions and
action is not taken. In such circumstances, there is no explanation
offered by the Applicant why the present Respondent No. 1-accused
has been singled out by a filing criminal case. No material is brought
on record by the Applicant to indicate that similar cases are filed
against    other    Estate   Managers    in   similar   circumstances           of
unauthorised constructions.

50.     In view of aforesaid communications it can be seen that the
Respondent No. 1 tried to find out policy in case request for
temporary construction was made. He was also trying to find out
whether proposed temporary construction can be made without
structural change.

51.     Viewed in the light of what has been observed above, when


Husen                                   20
                                                     ALS-27-2025(J) C3.doc




impugned order is perused, the learned Special Judge has considered
the evidence in detail and has rightly come to conclusion that the
alleged offence is not proved beyond reasonable doubt.

52.     Considering overall, case for grant of leave is not made out. No
interference is required.

53.     The application is accordingly dismissed.




                                             (M. M. SATHAYE, J.)




Husen                                 21