CA NO.253 OF 2017

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 253  OF 2017

NEERA YADAV                                      …Appellant

Versus

CENTRAL BUREAU OF INVESTIGATON                ...Respondent

J U D G M E N T

R. BANUMATHI, J.

This appeal arises out of the judgment dated 24.02.2016 passed

by High Court of Judicature at Allahabad in Criminal Appeal No.4837 of

2012,  affirming  the  conviction  of  appellant-Neera  Yadav,  the  then

Chairperson  and  Chief  Executive  Officer  (CCEO)  of  NOIDA  (New

Okhla  Industrial  Development  Authority)  under Section  13(2) read

with Section 13(1)(d)  of  Prevention of Corruption Act, 1988 (for short

‘P.C. Act’) and sentencing her to undergo rigorous imprisonment for a

period of three years and fine of Rs.1,00,000/- and in case of default in

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payment of fine with simple imprisonment for an additional period of

four months.  

2. It is a harsh reality that corruption has become 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

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marred by land allotment scams worth several crores of rupees, owing

to  abuse  of  position  and  power  by  the  officials  entrusted  with  the

management and control of NOIDA itself.  In this connection, several

complaints  surfaced  alleging  irregularities  in  allotments  and

conversions of land in 'NOIDA'.  Explanation was sought in this regard

by the then Principal Secretary (Heavy Industries) of the Government

of U.P. from Appellant Neera Yadav, the then Chairperson-cum-Chief

Executive Officer (CCEO) of NOIDA.  But, a final decision was taken

not to initiate any departmental inquiry in the matter against the officials

concerned.  

4. One ‘NOIDA Entrepreneurs  Association’  sought  inquiry  by the

Central Bureau of Investigation (CBI) in the matter and this Court vide

order dated 20.01.1998 directed that the matter be investigated by the

CBI.  Consequently,  the  CBI  registered  an  F.I.R.  Crime  No.

RC/3(A)/98-ACU-VII dated 26.02.1998 against Smt. Neera Yadav who

was serving as Chairperson and Chief  Executive Officer (CCEO) of

NOIDA, during the relevant period viz. 10.01.1994 to 08.11.1995, and

some other high officials of NOIDA. The FIR contained allegations to

the  effect  that  Ms.  Neera  Yadav  in  conspiracy  with  other  officials

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abused her position while committing grave irregularities in the matters

of allotments and conversions of land in NOIDA.  

5. In  NOIDA Entrepreneurs Association v. NOIDA and Others

(2007) 10 SCC 395, this Court has appointed Mr. K.T. Thomas, retired

Judge of this Court as the sole member of the Commission to inquire

into alleged irregularities in the matter of allotments and conversion of

the  plots.   Subsequently, in  NOIDA Entrepreneurs  Association  v.

NOIDA and  Others (2011)  6  SCC  526,  NOIDA  Entrepreneurs

Association  (Registered)  v.  New  Okhla  Industrial  Development

Authority and Others (2011) 6 SCC 527 and NOIDA Entrepreneurs

Association v. NOIDA and Others (2011) 6 SCC 508, this Court has

issued various directions.  The reference is made to these decisions

only to show that the registration of FIR by CBI was pursuant to the

direction of this Court.

6. Appellant-Neera  Yadav  held  the  post  of  Chairman-cum-Chief

Executive Officer (CCEO) of NOIDA for the period from 10.01.1994 to

08.11.1995.  During  her  tenure,  residential  scheme No.  1994(I)  was

announced and the date of submission of application was extended up

to 15.03.1994.  The prosecution alleges a case of complete abuse of

power in the matter of allotment of land; out of turn allotments; their

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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  same  was

approved  by  the  appellant  Smt.  Neera  Yadav  on  31.05.1994,

benefitting the appellant herself.   By a further change in the plot,  a

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7.50 ms. wide road was carved to the east of plot No.26 which again

resulted in benefitting the appellant.  

8. Further, the appellant abused her position in getting two plots in

the name of her two daughters Ms. Sanskriti and Ms. Suruchi.  Shop

No.9 in Sector-28 of  NOIDA was allotted in the name of  the eldest

unmarried daughter of Neera Yadav, Ms. Sanskriti who was studying

abroad  since  1991  and  who  had  received  possession  of  her  shop

through her younger sister Ms. Suruchi. She requested for issuance of

the functional certificate and the same was issued immediately on the

same date viz. 06.06.1994.  On the strength of the ownership of shop

No.9  in  Sector-28,  Ms.  Sanskriti  had  applied  for  allotment  of  a

residential plot under the scheme of 1994 (ii) of NOIDA. Consequently,

plot  No.B-73  in  Sector-44,  Noida  was  allotted  in  the  name  of

Ms.  Sanskriti  which  she  later  on  got  converted  to  plot  No.A-33  in

Sector-44. Likewise, Ms. Suruchi, another daughter of Neera Yadav,

was also allotted a shop viz. shop No.74 in Sector-15 of Noida and

after obtaining possession of the same, the shop was declared to be

functional  on 28.05.1994.  On the strength  of  ownership  of  the said

shop, Ms. Suruchi also applied for allotment of a residential plot under

the  scheme  of  1994(iii).   Consequently,  plot  No.B-88  in  Sector-51,

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allotted to them in the normal course and declared functional as per the

rules of NOIDA.  It was further submitted that at the time of preferring

application  for  shops  and  plots,  the  appellant’s  daughters  were  not

dependent upon the appellant and they were major and income tax

assessees,  having  independent  source  of  income  and  were  thus

eligible for allotment of concerned shops and plots.  It was urged that

neither there was any violation of rules of NOIDA, nor any loss was

caused to NOIDA due to allotment/conversion of shops and plots in

favour of the appellant or in favour of her daughters.  

13. The learned Solicitor  General  Mr. Ranjit  Kumar submitted that

with mala fide intention, appellant abused her position and managed to

get plot No.B-002 in Sector-32 after the closure of the Scheme 1994(i)

vide her incomplete application.  The learned Solicitor General further

urged  that  by  abusing  her  position  as  Chief  Executive  Officer,  the

appellant managed to get the above plot converted to a bigger plot i.e.

plot  No.A-26,  from  450  sq.ms.  to  562.50  sq.ms.  in  a  developed

Sector-14A,  by  altering  the  site  plan  which  was  approved  by  the

appellant  herself  on  31.05.1994.  Drawing  our  attention  to  the

allotments  made  in  favour  of  appellant’s  daughters,  the  learned

Solicitor  General  further  submitted  that  by  abusing  her  position  as

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CCEO, the appellant managed to get the shops allotted in the name of

her  daughters,  fraudulently  obtaining  the  functional  certificate

thereafter  based on which allotment of  residential  plots were made.

The learned Solicitor  General  urged  that  upon consideration  of  the

evidence and materials on record, the trial court and the High Court

rightly convicted the appellant and that the concurrent findings warrant

no interference.   

14. We have considered the rival contentions and have also perused

the impugned 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,

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(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 provision makes it clear that if the elements of

any of the three sub-clauses are met, the same would be sufficient to

constitute an offence of ‘criminal misconduct’ under Section 13(1)(d).

Undoubtedly, all  the three wings of  clause (d)  of  Section 13(1)  are

independent,  alternative  and  disjunctive.   Thus,  under

Section  13(1)(d)(i)  obtaining  any  valuable  thing  or  pecuniary

advantage by corrupt  or  illegal  means  by a  public  servant  in  itself

would  amount  to  criminal  misconduct.   On  the  same  reasoning

“obtaining a valuable thing or  pecuniary advantage”  by abusing his

official position as a public servant, either for himself or for any other

person would amount to criminal misconduct.  

Illegality in Allotment of Plot No.B-002 Sector 32 and subsequent conversion to Plot No.26, Sector-14A 16. Case of  prosecution is that  the appellant  Neera Yadav sought

allotment of a residential plot in her name vide an undated application,

allegedly moved after closure of the concerned scheme, with undated

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cheque.  Appellant  preferred an undated application (Ext.  Ka-37)  for

allotment of a residential Plot under Category-VI (Regular Employees

of  NOIDA  or  regular  Government/Public  Sector  Undertaking

Employees on deputation to NOIDA) under the Scheme 1994(i), which

was  issued  inviting  applications  for  allotment  of  residential  plots  in

Sectors 23, 32, 33, 34, 35, 49 and 53 as per the brochure. The scheme

offered  five  categories  of  plots,  based  on  size.   The  concerned

application No.648 (Ext. Ka-37) was preferred by the appellant for Plot

code 05 i.e. plot of 350 sq.ms.  

17. As per the brochure, in order to seek registration, the applicant

had to submit a duly filled application form for allotment of plot in the

prescribed form alongwith all the enclosures; and 30% of the premium

amount  at  the  rate  of  Rs.1200/-  per  sq.m.  for  regular  plot  and

Rs.1215/- per sq.m. for a corner or park facing plot, ought to be paid.

The  appellant  is  alleged  to  have  paid  Rs.40,000/-  as  registration

amount  for  allotment  of  plot  measuring  350  sq.ms.  by  an  undated

cheque dated 15.03.1994.

18. Case of the prosecution is that allotment of the plot under the

concerned  scheme  in  favour  of  the  appellant  is  marred  by  grave

infirmities which is in complete violation of the norms of the scheme as

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stated  in  the  brochure.  Firstly,  the  prosecution  alleged  that  the

application  (Ex.  Ka-37)  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  mandatorily  required  to  be accompanied with a/c payee crossed 'demand draft' or 'pay order' of registration amount did not accompany with any demand draft or pay order rather was accompanied by an antedated cheque.

19. Clause 3  of  the brochure provides that  incomplete  application

without  enclosures  shall  not  be  registered.  Relevant  portion  of

Clause 3 of the brochure is as under:

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“……Incomplete application and applications without enclosures as mentioned  above  for  allotment  of  specific  plot  shall  not  be registered.   Therefore,  the  applicants  are  requested  to  submit complete  application  form  in  all  respect  alongwith  the  required enclosures  and  requisite  amount  of  registration  money  for registration.”

As  per  the  brochure  of  the  concerned  scheme,  the  documents  as

indicated thereon must be attached to the application form in order to

establish  the eligibility  of  the applicant  for  obtaining plot  in  NOIDA.

Legally, no allotment of plot could have been made on such a defective

application presented after cut-off date.  Since the appellant was the

CCEO  of  NOIDA,  she  abused  her  position  in  ensuring  that  her

application, though incomplete, is processed.

20. As per the brochure, the application must be accompanied with

account payee Demand Draft/Pay Order.  From the records, it is seen

that the appellant had not given the demand draft/pay order; on the

other  hand,  she  only  gave  cheque  dated  15.03.1994,  (Ex.Ka-8).

Though the said cheque is dated 15.03.1994, there is ample evidence

to show that the cheque was ante dated.  As per the clearing register,

the  said  Cheque  No.395207  dated  15.03.1994  was  cleared  by  the

Bank only on 28.03.1994.  That apart, Ex. Ka-14 to Ex. Ka-24 contains

the names, draft numbers and amount paid by each of the applicants.

As seen from Ex.Ka-44,  Log Book,  total  amount  of  all  the demand

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drafts was only Rs.65,20,200/-.  By perusal of Ex.Ka-84, it is seen that

Sl. No.163 was cut off and Sl. No.164 Cheque of Neera Yadav was

included and consequently altering the total amount as Rs.65,60,200/-.

As seen from Ex.Ka-85, the Bank Statement, as on 21.03.1994, only

Rs.65,20,200/-  alone was received by the bank from NOIDA.   This

clearly shows that the Cheque (Ex. Ka-8), though dated 15.03.1994

was not presented on 15.03.1994 or on 18.03.1994 and that is why the

same was neither included in the Clearing register of 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

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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 have been obtained, and hence, she submitted

Ex. Ka-8 cheque by mentioning a back date. The fact that appellant's

cheque (Ex.Ka-8) was sent for collection on 28.03.1994, after seven

days  of  collection  of  amount  of  demand  drafts  in  respect  of  other

applications clearly leads to an irresistible conclusion that appellant’s

application was only subsequently included in  the register. The trial

court  and the High Court  rightly held that  the appellant  abused her

position  in  ensuring  that  her  incomplete  application  with  ante-dated

cheque was processed.  

22. Plot  No.B-002  in  Sector-32  was  allotted  to  the  appellant  on

08.04.1994  vide allotment  letter  Ex.  A-78.   The appellant  submitted

Ex.Ka-39 application on 15.04.1994 seeking conversion of her plot to a

plot  measuring 450 sq.ms. in a developed sector.  As is seen from

Ex.Ka-90, the proposal for conversion was put up by G.C. Tiwari on

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02.05.1994 and PW-35 Stuti Kacker, Officer on Special Duty of NOIDA,

allowed  the  conversion  of  the  plot  on  06.05.1994.   As  per  the

conversion policy any conversion of  plot  is  required to  be done by

CEO, NOIDA.  Case of prosecution is that since CEO herself was the

applicant  for  conversion of  the plot,  the matter  ought  to  have been

placed before the Board; rather than before a subordinate officer like

PW-35 Stuti Kacker.  Allowing of conversion of appellant’s plot to plot

No.27, Sector-14A by a subordinate officer is in clear violation of the

conversion policy.

23. As per the policy of the allotment and also as per the terms of the

brochure,  the  successful  applicant  has  to  deposit  30% of  the  total

premium  for  allotment  of  Plot  No.26  in  Sector-14A  measuring

450 sq.ms.  The total  premium payable works out  to Rs.5,40,000/-,

30% of which comes to Rs.1,62,000/-.  By the communication dated

04.05.1994 it is seen that the appellant was asked to deposit only an

amount of Rs.1,08,000/-, which again is in violation of the terms of the

allotment and conversion.  

24. The  very  fact  that  the  application  was  ‘undated’  and  that  the

cheque was issued instead of demand draft and the same was cleared

only  on  28.03.1994,  clearly  prove  that  by abusing  the  position,  the

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appellant  obtained  undue  advantage  for  herself.   This  is  further

strengthened by the subsequent conversion of the plot,  allotment of

additional  area  in  her  favour  and  reduction  of  the  size  of  the

unnumbered plot 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

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No.26 was thus enhanced to 562.50 sq.ms.  No cogent reason has

been furnished by the appellant for approving the above plan of site

re-arrangement,  which  directly  benefits  the  appellant  herself  and

causes loss to NOIDA. The said 7.5 ms. wide road carved to the East

of plot No.26 and enhancement of area of plot No.26 only resulted in

benefitting the appellant by increasing her plot size and by making her

plot  as corner plot.   The maps depicting site plan of  Sector-14A of

NOIDA were prepared by the Chief Architect and the Chief Architect

Planner as per the direction of Dy. SP and these maps were marked

as Exs. A18 to A23 in Rajiv Kumar’s case [Spl. Case No. 19 of 2002]

and  certified  copies  of  the  same  were  produced  in  this  case  as

Talvitha.   

26. The following table as given by the High Court in its judgment in

Criminal Appeal No. 4717 of 2007 pertaining to Rajiv Kumar (which we

have also extracted in C.A. No.251-252/2017) will depict the frequent

changes made and the loss of land caused to NOIDA at the behest of

the appellants.  

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Sl. No.

Plot No. Map No.1 Ext. A-18 July 1984

Map No.2 Ext.A-19 11.2.94

Map No.3 Ext.A-20 11.2.94 (wrongly showing Road  in East)

Map No.4 Ext.A-21 28.5.94 Before Cuttings

Map No.5 Ext.A-22 28.5.94 After cuttings

Map No.6 Ext.A-23 Latest  31.10.99 w.e.f. 6.11.95

Area  of appurte nant Green Belt  in North

Total area of plot  with appurtenant Green Belt

1 26 630.00 450.00 450.00 562.50 562.50 562.50 783.86 1346.36 2 27 482.50 450.00 450.00 525.00 300.00 405.00 535.15 940.75 3 28 371.25 450.00 450.00 487.50 487.50 487.50 593.4 1080.71 4 Unnumbered

plot  towards West

NIL 529.35 304.35 90.00 304.35 Trapezium of (3.16+9.57)/2 ×30=231.45

49.8 240.75

5 Green  Belt Area towards West

Rectangle of (7.93×30) =237.90

Rectangle of (7.93×30= 237.90

Rectangl e  of 7.93×30= 237.90

Trapezium (7.23+7.93)/ 2×30=227.4

Rectangl e  of 7.93×30= 237.90

Trapezium of (7.93+7.50)2 ×30=231.45

- 231.45

6 Total Area 2311.65 2706.29 2481.89 2493.89 2445.89 2469.74 - 3840.02 Note: As seen from the endorsement in the above maps, the maps have been prepared by the architect and the Chief Architect Planner (30.10.1999) with reference to the letter No. Dy.SP.ACU VII/1999/0603 dated 08.09.1999 and direction given by the SP ACU VII CBI and in the meeting held on 25.10.1999 and 28.10.1999.   

27. A perusal of the above table of the exhibited maps shows that

from 1984 to 1993, for about a decade, there 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.   

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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 belt and Delhi Border in West about 10 meters or 33 feet very

wide green belt in North and 40 feet wide road in South making the

plots bigger in size with appurtenant green belt area.

29. The above mentioned change in  the  site  plan of  Sector-14A,

apart from resulting in direct loss of land to NOIDA, is also contrary to

the  Rules  of  NOIDA.   Clause  11  of  the  brochure  of  the  scheme

provides that the area of a plot allotted or handed over may vary from

the size of the plots advertised in the scheme and applied for, and a

marginal  increase or decrease in area upto a maximum of 20% on

either  side  may  be  allowed.  Clause  11  of  the  brochure  reads  as

follows:-   

“11. AREA OF PLOT:

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Area of plot allotted or handed over may vary from the size of the plots advertized in the scheme and applied for.  If the area of the plot  indicated  in  the  allotment  letter  issued  by  the  Authority  or actually handed over to the allottee is found to be in excess or less than the area applied for, a proportionate change in the amount of premium would  be  made.   No  dispute  would  be  allowed  to  be raised by the allottee on the ground of variation in the size of the plot.  He would also have no right to change of plot or refund of earnest money deposited by him on this account.  If the variation between the plot and area applied for and the area allotted is more than 20% and the allottee is unwilling to accept the enhanced or reduced area, registration money deposited by the allottee will be refunded without  interest  if  he applies  for  refund within  30  days from the date of issue of allotment letter.”   

The High Court has made an apt observation in this regard that the

purpose of clause 11 is to avoid any kind of dispute in case of any

marginal increase or decrease of area and to restrict the enhancement

or  decrease  in  the  area  of  the  plot  beyond  20%.  However,  if  we

consider the case of the appellant, it emerges that firstly by conversion

of her plot, the appellant first sought enhancement of area of her plot

by  50%  (300  sq.m.  to  450  sq.m.)  and  secondly  by  further

reorganisation, the appellant sought further enhancement of area of

her plot by 37.5% (450 sq.m. to 562.50 sq.ms.).   Also, by approving

the  intervening  road  between  the  two  plots,  the  appellant  not  only

converted her plot into a corner plot having two side opening on very

wide roads and very wide green belt on the other side, but also shifted

her plot towards West by 7.5 ms. and further extended it towards West

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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 undue advantage for herself.

Allotment  of  shops  and  plots  in  favour  of  daughters  of  the Appellant-Illegalities thereof

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31. The appellant Neera Yadav has three daughters, out of which

two daughters viz. Ms. Sanskriti and Ms. Suruchi, who were major, but

unmarried at the relevant point of time, had applied for allotment of

shops in NOIDA. Ms. Sanskriti had applied for allotment of a shop vide

undated application (Paper no. 14Ka/67). On 16.05.1994, shop No.9 in

Sector-28 of NOIDA was allotted in the name of  Ms. Sanskriti  vide

allotment  letter  (Ext.  Ka-11).  As  Ms.  Sanskriti  was  studying abroad

since 1991, for the purpose of issuance of functional certificate, she

had to obtain possession through her younger sister Ms. Suruchi. The

functional certificate was issued immediately thereafter on 06.06.1994.

On the strength of the ownership of shop No.9 in Sector-28, she had

applied for allotment of a residential plot under the Housing Scheme

(II)  of  1994,  which  was  launched  from  24.05.1994  to  08.06.1994.

Consequently,  plot  No.B-73  in  Sector-44  of  Noida,  measuring

450 sq.m. was allotted in  the name of  Ms.  Sanskriti  vide allotment

letter dated 01.08.1994 (Ext. Ka-55, paper no. 15Ka/54-15Ka/56) and

on 12.10.1994,  she got it converted to plot No.A-33 in Sector-44.  

32. Another  daughter  of  Neera Yadav, Ms.  Suruchi  had  preferred

application  dated  28.02.1994  and  was  allotted  shop  No.74  in

Sector-15 vide allotment letter (Ext. Ka-15). After obtaining possession

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of the same, the shop was declared functional on 28.05.1994. On the

strength of ownership of the said shop, she was allotted plot No.B-88

in Sector-51, measuring 450 sq.ms., under Residential Scheme (III) of

1994  vide  allotment  order  dated 23.09.1994 (Ext.  Ka-50,  paper  no.

17Ka/68-  17Ka/70),  which  she  subsequently  got  converted  to  plot

No.A-32 adjoining to plot No.A-33 (allotted to her sister) in Sector-44

Noida on 10.10.1994. The lease deed of both the plots were executed

on  26.12.1994  (Ext.  Ka-58,  paper  No.  15Ka/36-15Ka/45;  and  Ext.

Ka-53, paper no.17Ka/42- 17Ka/52). One year lease rent of both these

plots was paid only from the joint account of the appellant and her

husband.  As  rightly  observed  by  the  trial  court  that  the  various

applications  preferred  by  the  daughters  of  the  appellant  seeking

allotment  of  shops,  residential  plot  and  functional  certificate  were

defective 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

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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. On the contrary the appellants have maintained that at the time

of  applying  for  shops  and  plots,  appellant’s  daughters  were  major,

income tax payees and had independent source of income and were

thus eligible for allotment of plots. It is further maintained that there is

no provision in the rules of  NOIDA which prohibits transfer  of  shop

after availing the benefit of taking a residential plot against the shop.   

35. As  already noted above,  the application (Paper  No.14 Ka/67)

moved  in  the  name  of  Ms.  Sanskriti  was  undated.  The  column  of

Father’s name was left blank and required passport size photograph of

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the applicant was also not pasted. Paper No. 14 Ka/75 to 14 Ka/78 do

not  bear  signature  of  Ms.  Sanskriti,  as  was required.  Similarly, the

application moved for issuance of Functional Certificate (Paper No.14

Ka-51) is undated. Similarly, Ext. Ka-3 lacks essentials like date and

age of  the applicant.  Also,  the Father’s name on this  application is

written as ‘Mahendra Singh’. Paper No.16 Ka/32 to 16 Ka/36 do not

bear signature of Ms. Suruchi, as required. Similarly, the application

moved  by  her  for  issuance  of  Functional  Certificate  (Paper  No.16

Ka-10)  is  also  ante-dated.  Taking  note  of  the  above  mentioned

irregularities and infirmities in the paper work with regard to allotment

and functionality of the shops allotted in favour of the daughters of the

appellant, the courts below have rightly concluded that no allotment of

shops should have been made in their favour.      

36. It is an admitted fact that the education and living expenses of

the two daughters of the appellant was borne by the appellant and her

husband.  Ms.  Sanskriti  was  living  and  studying  in  U.K.,  while

Ms. Suruchi was studying in India itself. It was neither alleged nor any

document, in this behalf was produced to contend that the daughters

of  the appellant  had independent  sources  of  income and that  they

were bearing their education and living expenses on their own.   It is

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also  available  on  record  that  the  appellant  and  her  husband

maintained several joint accounts with their daughters as also in the

name of HUF, and the registration money for allotment of shops was

paid from this joint account only.  

37. The two shops allotted in favour of the daughters of the appellant

were declared functional, thereby making them eligible for allotment of

residential plots under Scheme (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

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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  intention of

obtaining residential plots in the guise of seeking allotment of shops.

The shop so allotted in the name of Ms. Sanskriti, was sold by her to

Meenakshi  Vijay  on  19.10.1995  vide paper  No.14/A-4  for  valuable

consideration,   disclosing  to  her  that  she  has  already  obtained

advantage of securing allotment of a residential plot.

39. The appellant has contended that her daughter Ms. Sanskriti and

Ms. Suruchi were income tax assesses, as they were filing income tax

returns. As per the appellant, her husband and her daughters together

form a Hindu Undivided Family and that  they together hold a bank

account in such capacity. It  was contended that the payments were

made from the said account. However, the appellant did not produce

any evidence to substantiate her claim. More so, it is noteworthy that

before  09.09.2005  when  Amending  Act  No.39  of  2005  of  Hindu

Succession Act came into force (w.e.f.  05.09.2005), daughters were

not coparceners of Hindu Undivided Family. Hence, the daughters of

the appellant could not have been coparceners of HUF in the relevant

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period of 1994-95, in the absence of any direct evidence in this regard.

Also, it is noteworthy that the daughters of the appellant were never

examined  before  the  Court,  nor  any  documents  produced  to

substantiate their claim.

40. It was also contended that the daughters had inherited certain

properties  worth  around  Rs.3.00  lacs  and  some  gold  from  their

grandmother 'Nani',  which sufficed in payment of registration money

for the shops and plots allotted in their favour. However, nothing was

proved  on  record  to  substantiate  the  said  contention.  Neither  the

appellant produced certified copies of the alleged income tax returns,

nor  she  filed  any  other  document  supporting  her  contention  that

registration amount was paid out  of  the independent income of  her

daughters.  In  fact  evidence  to  the  contrary  have  been  proved  on

record. The appellant has brought on record photocopies of income

tax returns of their daughters, which is not a certified copy. However,

even if we consider the same, it emerges that the concerned income

tax  returns  were  filed  by  the  daughters  after  they  received  some

assets/valuable  securities  under  the Will  of  their  Nani and  that  the

daughters earned a very meagre or nominal annual income between

Rs.25,000/- to Rs.40,000/- including income from interest on FDRs &

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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 further contended that both the daughters of

the appellant had borrowed Rs.4.00 lakhs each from M/s. N.P. Mutual

Benefits Ltd., Bareilly on 09.06.1995 so as to pay for the plots allotted

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in their favour. In this context, testimony of PW-20, Navin Khandelwal,

Managing Director, M/s. N.P. Mutual Benefits Ltd. is relevant. PW-20

has deposed that he had simply lent the money in the name of the

daughters  of  the  appellant  on  receiving  a  telephonic  call  made  by

Shri M.S. Yadav, husband of the appellant-Neera Yadav.   PW-20 had

never met the daughters of the appellant and had disbursed the loan

amount solely on account of faith in their father. PW-20 was not even

cross-examined on behalf  of  the appellant  on this  aspect.  Both the

loans  were  liquidated  on  05.10.1996.  The  above  facts  show  that

subsequent transaction of loan was only a sham transaction to support

the fake case of the appellant.  

42. Considering the depositions of material witnesses, it is hard to

believe that the requisite amount for seeking allotment of shops and

residential  plots  were  made  out  of  independent  income  of  the

daughters  of  the  appellant.  So  far  as  the  payment  for  seeking

allotment of shop is concerned, deposition of PW-9, Harish Chandra is

important  who  was  working  as  Deputy  Manager,  Syndicate  Bank

Branch Sector-18, Noida at the relevant point of time. On behalf  of

Ms.  Sanskriti  pay-orders of  Rs.  49,000/-  and Rs. 5,500/-  were paid

towards the allotment of shop and on behalf of Ms. Suruchi demand

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drafts  of  Rs.  20,500/-  and  Rs.  67,950/-  were  submitted.PW9  has

deposed that he received in cash Rs. 49,000/- plus Rs. 25/- in lieu of

bank commission with an application for purchase of pay-order (Paper

No.  20  Ka/3)  in  favour  of  NOIDA,  to  be  made  on  behalf  of  Ms.

Sanskriti. He further deposed that the cash officer had endorsed on

this  application  in  his  handwriting  ‘reference  Chairman  Noida

Authority’.  He  had also  received  another  application  (Paper  no.  20

Ka/2) for purchase of pay order of Rs. 5,500/-. He deposed that he

prepared  the  demand  drafts  and  handed  it  over  to  the  concerned

person  who  had  come  with  the  cash  amounts.  Similarly,  as  per

deposition  of  PW-13  Rajiv  Jain  Assistant  General  Manager,  SBI,

Chandni Chowk, Delhi, applications for purchase of demand drafts of

Rs. 20,500/- (Paper no. 29 ka/9) and  Rs. 67,950/- (dated 19.12.1994)

were  accompanied  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

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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, New Delhi. PW-32 Rajiv Luthra, Senior Manager, Oriental

Bank of Commerce, Paharganj, New Delhi has deposed that account

No. 9180 was opened in the name of Ms. Sanskriti, Ms. Neera Yadav

and Mr. Mahendra Singh Yadav. The said account was opened on the

basis  of  identity  card  of  Mr.  Mahendra  Singh  Yadav  and  was

accessible only by the appellant and her husband, as Ms. Sanskriti’s

occupation was mentioned as student and she being minor was not

allowed  to  operate  the  account.  PW-32  has  deposed  that  he  was

unaware as to how cheque signed by Ms. Sanskriti  was processed.

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Similarly, Ms. Suruchi had issued cheque dated 08.08.1994 (Paper no.

26  ka/3)  in  favour  of  herself,  accompanied  with  an  application  for

purchase of pay order of Rs.50,000/-, in favour of NOIDA, drawn on

account No. 9181 in the same bank. PW-32 has further deposed that

the bank accounts were opened on the ground that the appellant and

Ms. Suruchi held a joint account (account No. 1205) in the Oriental

Bank of Commerce, Hazratganj, Lucknow since 01.03.1993. He further

deposed  that  by  virtue  of  transfer  payment  order  amounting  to

Rs. 474287.82 of Oriental Bank of Commerce, Hazratganj, Lucknow

was received in the account No. 9181 and whatever money came from

Lucknow, account No. 9180 was opened from that money itself.   In

such  a  factual  scenario,  the  argument  of  the  Appellant  that  her

daughters were major and that they had purchased concerned shops

and residential plots from their independent source of income, is not

tenable.          

44. The prosecution case stands proved with regard to the payment

of  registration money or value of  shops and residential  plots in the

name  of  daughters  of  the  appellant  being  made  by  the  appellant

herself, as the daughters of the appellant were not capable of making

such payments. Both the courts below have rightly held so in the light

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of proper appreciation of evidence proved on record. The applications

moved by the daughters of the appellant, be it for seeking allotment of

shops  or  for  issuance  of  functional  certificate,  were  defective  on

various counts and no allotment could have been made by acting on

them, as held by the courts below by recording concurrent findings,

which we completely endorse. The appellant had sought allotment of

shops in favour of her daughters only to seek allotment of residential

plots  in  their  name,  by  falsely  portraying  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

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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 appellant seeking allotment of a residential plot was acted upon

and plot No.B-002 in Sector-32 was allotted to her, especially when the

appellant  had  not  even  adhered  to  the  requisite  mode of  payment

through a  demand draft/Pay order  and  had instead  made  deficient

payment  through  cheque.  Also  there  is  no  justification  as  to  how

deficient lease rent paid by the appellant in lieu of her allotment was

accepted against the full payment requisite in the Rules.  

46. The prosecution has clearly proved that the application of  the

appellant was not included in the list of applications which were sent to

the Bank along with the demand drafts after the cut-off date. In fact it is

proved that her cheque was sent for collection after seven days on

28.03.1994. These facts point at the sole inference that the ante-dated

application  of  the  appellant  was  filed  only  after  the  closure  of  the

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scheme, thereby indicating that  the appellant  put  herself  above the

Rules and Regulations of NOIDA.  

47. It is also proved by the prosecution that the appellant effortlessly

got her smaller plot in Sector-32, measuring 300 sq.m. converted to a

bigger  plot  in  Sector-14A,  measuring  450  sq.m.  and  thereafter,

enhanced the area of the plot by 37% by illegal means and by abusing

her  position  leading  to  a  total  area  of  562.50  sq.m.   Although the

appellant  has  maintained  that  she  had  no  role  to  play  in  the

enhancement of area of plot No. 26 in Sector 14-A and further revision

of  layout  plan  of  Sector-14A,  evidence  available  on  record  show

otherwise. Evidence on record shows that revision of layout plan of

Sector-14A was carried under the direction of the appellant and that

too  without  following  the  norms  of  consulting  the  Engineering

Department of NOIDA, which was mandatory as per the rules.  The

said  change in  the layout  plan not  only  benefitted  the  appellant  in

manifold ways but also caused huge financial loss to NOIDA, as an

unnumbered plot was considerably reduced in size and deformed in

shape, thereby rendering it completely useless for NOIDA.   

48. Apart from the above mentioned instances of abuse of position,

the  appellant  also  secured  allotment  of  two  shops  for  her  two

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daughters and then obtained residential plots in the name of her two

major,  dependent  daughters,  by  completely  defying  the  rules  and

regulations. The appellant managed to seek allotment of shops in the

favour of her daughters 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

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interest to promote her individual interest, shows that she abused her

position  to  gain  undue  advantage  to  herself  and  to  cause  loss  to

NOIDA.  An attitude to abuse the official position to gain advantage to

herself and this misuse of position erodes collective faith of the people

in the system.  Corruption paralyses the functioning of the key areas of

the State administration.

50. A particular kind of corruption that has become more rampant of

late is nepotism to promote the interests of those near and dear to

them. Nepotism is in a sense a greater evil since it involves dispersal

of favours by patrons amongst their arm coterie, depriving others of a

career  or  office  they deserve  more.  The  practice  of  promoting  the

interest of few individuals to the detriment of many others is wholly

reprehensible and deserves to be condemned.

51. A Constitution Bench of this Court in Manoj Narula v. Union of

India (2014) 9 SCC 1, held that corruption erodes the fundamental

tenets  of  the rule  of  law and quoted with  approval  its  judgment  in

Niranjan  Hemchandra  Sashittal  &  Anr.  v.  State  of  Maharashtra

(2013) 4 SCC 642, it was held as under:-

“26. It can be stated without any fear of contradiction that corruption is  not  to  be  judged  by  degree,  for  corruption  mothers  disorder, destroys  societal  will  to  progress,  accelerates  undeserved

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ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance.”

52. In Subramanian  Swamy v.  Manmohan Singh  and  Another

(2012) 3 SCC 64, it was held as under:-

“68. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist,  secular  democratic  republic.  It  cannot  be  disputed  that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity  which  are  the  core  values  in  our  preambular  vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption….”  

53. In K.C. Sareen  v. C.B.I., Chandigarh (2001) 6 SCC 584, it was  

observed:-

“12. Corruption by public servants has now reached 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,

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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 14 as it defeats the  purpose  of  finding  prima  facie  truth  into  the allegations of graft, which amount to an offence under the PC Act, 1988. Can there be sound differentiation between corrupt public servants based on their status? Surely not, because irrespective of  their  status or  position,  corrupt public  servants  are  corrupters  of  public  power.  The corrupt public servants, whether high or low, are birds of the  same  feather  and  must  be  confronted  with  the process of investigation and inquiry equally. Based on the position or status in service, no distinction can be made between  public  servants  against  whom  there  are allegations amounting to an offence under the PC Act, 1988.”

And thereafter, the larger Bench further said: (SCC p. 726, para 60) “60.  Corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the PC Act, 1988. It is difficult to  justify  the  classification  which  has  been  made  in Section 6-A because the goal of law in the PC Act, 1988 is to meet corruption cases with a very strong hand and all public servants are warned through such a legislative measure that corrupt public servants have to face very serious consequences.” And again: (SCC pp. 730-31, paras 71-72) “71.  Office of  public  power cannot be the workshop of personal  gain.  The  probity  in  public  life  is  of  great importance. How can two public servants against whom there are allegations of corruption of graft or bribe-taking or criminal misconduct under the PC Act, 1988 can be made to be treated differently because one happens to be a junior officer and the other, a senior decision maker.

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72. Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act,  1988.  The status or  position of  public  servant does not qualify such public servant from exemption from equal  treatment.  The  decision-making  power  does  not segregate corrupt officers into two classes as they are common crimedoers and have to be tracked down by the same process of inquiry and investigation.”

18. From  the  aforesaid  authorities,  it  is  clear  as  noonday  that corruption has the potentiality to destroy many a progressive aspect and it has acted as the formidable enemy of the nation.”

55.    Every country feels a constant longing for good governance,

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:-

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“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) taking money (for themselves).

It is possible to mark the movements of birds flying high up in the sky; but not so is it possible to ascertain the movement of government servants of hidden purpose.”  

[Ref: Kautilya’s Arthasastra by R. Shamasastry, Second Edition, Page 77] As  pointed  out  by  Paul  H.  Douglas in  his  book  on  “Ethics  of

Government”, “corruption was rife in British public life till  a hundred

years ago and in USA till the beginning of this century. Nor can it be

claimed  that  it  has  been  altogether  eliminated  anywhere.”

(Ref: Santhanam Committee Report, 1962: Para 2.3).   

57. Tackling  corruption  is  going  to  be  a  priority  task  for  the

Government.  The Government  has been making constant  efforts  to

deal with the problem of corruption. However, the constant legislative

reforms and strict judicial actions have still not been able to completely

uproot the deeply rooted evil of corruption. This is the area where the

Government  needs  to  be  seen  taking  unrelenting,  stern  and

uncompromising steps. Leaders should think of introducing good and

effective  leadership  at  the  helm  of  affairs;  only  then  benefits  of

liberalization  and  various  programmes,  welfare  schemes  and

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programmes would reach the masses. Lack of awareness and supine

attitude of the public has all along been found to be to the advantage

of the corrupt.  Due to the uncontrolled spread of consumerism and fall

in moral values, corruption has taken deep roots in the society.  What

is needed is a re-awakening and recommitment to the basic values of

tradition rooted in ancient  and external  wisdom. Unless people rise

against bribery and corruption, society can never be rid of this disease.

The people can collectively put off this evil by resisting corruption by

any person, howsoever high he or she may be.   

58. Upon consideration of the evidence on record, we are of the view

that the concurrent findings recorded by the trial court as well as by the

High Court are based upon proper appraisal of facts and evidence and

the  concurrent  findings  do  not  suffer  from  any  error  warranting

interference.

59. In Special Case No.28 of 2002 for the conviction of the appellant

Neera Yadav under Section 13(2) read with Section 13 (1) (d) of the

Prevention of  Corruption Act,  1988, the appellant  was sentenced to

undergo  rigorous imprisonment for a period of three years with a fine

of Rs.1,00,000/- with default clause.  In Special Trial No.19 of 2002 for

conviction  under  Section  120-B  IPC  and  Section  13  (2)  read  with

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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

allotted to herself and her two daughters and one conspiring with Rajiv

Kumar to get him allotment of a plot and the irregularities committed

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thereon  and  therefore  the  sentences  imposed  upon  the  appellant

cannot be ordered to run concurrently.  

62. Section 31 of Cr. P.C. relates to the quantum of punishment that

the Court has jurisdiction to pass where the accused is convicted of

two or more offences at one trial (Joinder of charges at one trial vide

Sections 218-223 Cr.P.C.). Where accused is convicted and sentenced

for  several  offences  at  one  trial, the  Court  may  direct  that  the

sentences shall run concurrently.  In the absence of such direction by

the Court, sentences shall run consecutively.  It is not obligatory for the

trial  court  to  direct  in  all  cases  that  the  sentences  shall  run

concurrently.     

63. This  Court  considered  the  scope  of  Section  31  Cr.P.C.  and

concurrent or consecutive running of sentence in O.M. Cherian alias

Thankachan v. State of Kerala and Others (2015) 2 SCC 501.  The

appellant thereon was convicted for the offences under Section 498-A

and Section 306 IPC.  The trial court ordered substantive sentences

imposed on the appellant thereon to run consecutively and the same

was affirmed by the High Court. Considering the scope of Section 31

Cr.P.C. and the discretion of the Court in directing concurrent running

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of sentences, this Court directed sentences to run concurrently.  It was

held as under:-

“10. Section 31 CrPC relates to the quantum of punishment which may  be  legally  passed  when  there  is  (a)  one  trial,  and  (b)  the accused is convicted of “two or more offences”.  Section 31 CrPC says that subject to the provisions of Section 71 IPC, the court may pass  separate  sentences  for  two  or  more  offences  of  which  the accused  is  found  guilty,  but  the  aggregate  punishment  must  not exceed the limit fixed in provisos (a) and (b) of sub-section (2) of Section 31 CrPC. In Section 31(1) CrPC, since the word “may” is used, in our considered view, when a person is convicted for two or more offences at one trial, the court may exercise its discretion in directing  that  the  sentence  for  each  offence  may  either  run consecutively or concurrently subject to the provisions of Section 71 IPC. But the aggregate must not exceed the limit fixed in provisos (a) and (b) of sub-section (2) of Section 31 CrPC, that is; (i) it should not exceed  14  years;  and  (ii)  it  cannot  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 sentences to run concurrently in case of conviction for two  or  more  offences.  It  is  difficult  to  lay  down  any  straitjacket approach in the matter of exercise of such discretion by the courts. By and large,  trial  courts  and appellate  courts  have  invoked  and

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exercised their discretion to issue directions for concurrent running of sentences, favouring the benefit to be given to the accused. Whether a direction for concurrent running of sentences ought to be issued in a  given  case  would  depend  upon  the  nature  of  the  offence  or offences committed and the facts and circumstances of the case. The discretion has to be exercised along the judicial lines and not mechanically.” (Underlining added)

64. Section 31 Cr.P.C deals with quantum of punishment which may

be legally passed when there is :- (a) one trial; and (b) the accused is

convicted of two or more offences. The ambit of Section 31 is wide,

covering  not  only  a  single  transaction  constituting  two  or  more

offences  but  also  offences  arising  out  of  two  or  more  transactions

provided that those transactions/charges were framed together at one

trial.  

65. Section 31 relates to the quantum of  the punishment  that  the

court has jurisdiction to pass that the accused is convicted of two or

more offences at  one trial.  Section 427 Cr.P.C. deals with sentence

passed on an offender who is already sentenced for another offence.

The  power  conferred  on  the  Court  under  Section  427  to  order

concurrent sentence is discretionary.  The salutary principle adopted

by the Court is the totality of the sentences.  The maximum sentence

awarded  in  one  case  against  the  same  accused  is  relevant

consideration while giving concurrent sentence in another case.  The

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policy of the legislature is that normally the sentencing should be done

consecutively.  Only in appropriate cases, considering the facts of the

case, the Court can make the sentence concurrently with an earlier

sentence imposed.  A person sentenced to imprisonment must, for the

purpose  of  Section  427  Cr.P.C.,  be  deemed to  be  undergoing  that

sentence from the very moment the sentence is passed.  The accused

may be on bail or in custody in the earlier case at the time of passing

of the subsequent sentence.   

66. The sentencing Court has the discretion to direct concurrency.

The investiture of such discretion, presupposes that it will be exercised

on sound principles  and not  on whims.   In  the Criminal  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:-  

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“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 various  sentences  of  imprisonment  shall  be  directed  to  run concurrently or consecutively. There are no judicial decisions, to my knowledge, by superior courts laying down the guidelines as to what should  be  the  criteria  for  directing  the  convict  to  undergo imprisonment  on  various  counts  concurrently  or  consecutively.  In certain cases, if the person convicted is a habitual offender and he had  been  found  guilty  of  offences  on  various  counts  and  it  is suspected  that  he  would  be  a  menace  if  he  is  let  loose  on  the society, then the court would direct that such person shall undergo the imprisonment consecutively……”

67. It  is  well  settled  that  where  there  are  different  transactions,

different  crime numbers and cases have been decided by different

judgments,  concurrent  sentences  cannot  be  awarded  under

Section 427 Cr.P.C.  In  Mohd. Akhtar Hussain v. Asst. Collector,

Customs (1988) 4 SCC 183, it was held as under:-

“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 is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction  relating  to  offences  is  not  the  same  or  the  facts constituting the two offences are quite different. …… 12. The submission, in our opinion, appears to be misconceived. The material produced by the State unmistakably indicates that the two offences for which the appellant was prosecuted are quite distinct and different. The case under the Customs Act may, to some extent, overlap the case under the Gold (Control) Act, but it is evidently on

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different  transactions.  The complaint  under  the Gold (Control)  Act relates to possession of 7000 tolas of primary gold prohibited under Section 8 of the said Act. The complaint under the Customs Act is with regard to smuggling of gold worth Rs 12.5 crores and export of silver  worth  Rs  11.5  crores.  On  these  facts,  the  courts  are  not unjustified in directing that the sentences should be consecutive and not concurrent.”

68. The  above  general  rule  that  there  cannot  be  concurrency  of

sentence  if  conviction  relates  to  two  different  transactions,  can  be

changed by an order of the Court.  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.  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)

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“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  is  proper  and legitimate to have concurrent sentences. But this rule has  no  application  if  the  transaction  relating  to offences is not the same or the facts constituting the two offences are quite different.”

16. In  conclusion,  we  may  say  that  the  legal  position  favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction no matter different complaints in relation thereto may have been filed as is the position in cases involving dishonour of  cheques issued by the borrower towards repayment of a loan to the creditor.”

69. This instant case is one covered under Section 427 Cr.P.C.  As

noted  earlier  appellant  Neera  Yadav  has  been  convicted  in  two

different cases, one of abusing the official position in getting the plots

allotted to herself and her daughters and other irregularities in making

changes in the site plan and another one in abusing her position as

CEO, Noida conspired with Rajiv Kumar in allotting plot to him.  Having

regard to the facts and circumstances of the case and considering the

nature  of  allegations,  in  our  view,  it  is  not  justifiable  to  direct

concurrency  of  sentence.   Any  unprincipled  exercise  of  judicial

discretion and casual direction made regarding concurrency would go

against  the express provisions of  the Prevention of  Corruption Act,

1988 and the Criminal Procedure Code.  

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70. Insofar as the sentence is concerned, the occurrence was of the

year 1994.  The appellant Neera Yadav is undergoing sentence from

14.03.2016. With her conviction, the service and getting retiral benefits

are in jeopardy.  Further, husband of appellant Neera Yadav has filed

an  affidavit  stating  that  the  appellant  surrendered  plot  No.26  in

Sector-14A along with  building constructed in  December, 2013 and

surrendered  lease  deed  has  been  executed  on  20.12.2013,  in

pursuance  of  the  order  dated  20.05.2013  of  the  Chief  Executive

Officer, NOIDA.  It is also stated that the said plot along with building

constructed has been physically handed over to NOIDA authority on

24.12.2013.  The appellant’s husband has also withdrawn the protest

affidavit  dated  14.07.2014  filed  before  this  Court  in  Writ  Petition

No.150 of 1997 titled as NOIDA Entrepreneur Association v. NOIDA

and Others.  It is also submitted that she will not make any claim for

refund.  In the above facts and circumstances of the present case,

sentence of imprisonment of three years imposed on the appellant is

reduced to two years.

71. In  the  result,  the  conviction  of  the  appellant  Neera  Yadav  is

confirmed. The sentence of imprisonment of three years imposed on

the appellant is reduced to two years and the appeal is partly allowed.

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Prayer  for  concurrent  running  of  sentences  of  imprisonment  is

rejected.  

..……………………….J. [KURIAN JOSEPH]  

                            .………………………..J.     [R. BANUMATHI]

New Delhi; August 02, 2017

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ITEM NO.1501               COURT NO.6               SECTION II

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  253/2017

NEERA YADAV                                        Appellant(s)                                 VERSUS

CENTRAL BUREAU OF INVESTIGATION                    Respondent(s)

Date : 02-08-2017 This appeal was called on for pronouncement of judgment.

For Appellant(s) Mr. K.V. Vishwanathan,Sr.Adv.                   Mr. P.V. Dinesh, AOR

Ms. Arushi Singh,Adv. Mr. Bineesh K.,Adv. Mr. Rajendra Beniwal,Adv. Mr. Abhishek Thakur,Adv.

                   For Respondent(s) Mr. Mukesh Kumar Maroria, AOR                      

Hon'ble  Mrs.  Justice  R.  Banumathi

pronounced the judgment of the Bench comprising

Hon'ble  Mr.  Justice  Kurian  Joseph  and  Her

Lordship.

The appeal is partly allowed in terms of the signed judgment.

Pending  application(s),  if  any,  shall  stand disposed of.  

(NARENDRA PRASAD)                               (RENU DIWAN) COURT MASTER (SH)                              ASST. REGISTRAR

(Signed “Reportable” Judgment is placed on the file)

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