Neera Yadav vs Central Bureau Of Investigation on 2 August, 2017

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

JUDGMENT

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

Signature Not Verified
‘P.C. Act’) and sentencing her to undergo rigorous imprisonment for a
Digitally signed by
NARENDRA PRASAD

period of three years and fine of Rs.1,00,000/- and in case of default in
Date: 2017.08.02
16:35:25 IST
Reason:

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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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CA NO.253 OF 2017

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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comprising of an area of 450 sq.ms., was allotted in the name of

Ms. Suruchi, which she subsequently got converted to plot no.A-32

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

9. As noted earlier, in furtherance of direction issued by the

Supreme Court (20.01.1998), FIR was registered by CBI on

26.02.1998 in Crime Case No.RCNo.3(A)/98-ACU-VII inter alia against

the appellant Neera Yadav alleging that she abused her position in the

matter of allotment of plots, conversion of plots in her name and in the

name of her daughters. Sanction was obtained under Section 19(1) of

the P.C. Act, 1988 and after completion of investigation, chargesheet

was filed against the appellant.

10. To substantiate the charges against the appellant, the

prosecution, apart from producing a number of documentary

evidences, examined as many as thirty nine witnesses. The appellant

was questioned under Section 313 Cr.P.C. about the incriminating

evidence and circumstance and the appellant denied all of them. Upon

consideration of evidence, the Special Judge CBI, Ghaziabad, vide

judgment and order dated 20.11.2012 in Special Trial No.19 of 2002,

held that the prosecution has proved the guilt of the appellant beyond

reasonable doubt and convicted the appellant under

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Section 13(2) read with Section 13(1)(d) of P.C. Act and sentenced her

to undergo rigorous imprisonment of three years and fine of

Rs.1,00,000/, with default clause. Vide impugned order and judgment,

the High Court confirmed the conviction of the appellant and also the

sentence of imprisonment and fine imposed on the appellant.

11. Mr. K.V. Vishwanathan, learned senior counsel urged that as an

officer of NOIDA, the appellant was eligible to apply for a residential

plot and the appellant made her application along with the cheque of

Rs.40,000/- as registration money and that plot No.B-002, Sector-32,

was lawfully allotted to the appellant. It was further submitted that

conversion of plot in Sector-32 into plot No.26, Sector-14A was in

compliance with relevant rules and due procedure and was not a case

of illegality.

12. Further contention of the appellant is that she never directed S.P.

Gautam, the then Chief Architect Planner, NOIDA, to increase the size

of her plot, or to carve out a 7.5 m. wide road between her plot and plot

No.25. The said increase arose out of necessity of providing privacy

and security to the Chairman, Greater Noida and thus there was no

abuse of position by the appellant. It was contended that the daughters

of the appellant had applied for allotment of the shops and shops were

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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. Plot No. Map No.1 Map No.2 Map Map No.4 Map Map No.6 Area of Total area of
No. Ext. A-18 Ext.A-19 No.3 Ext.A-21 No.5 Ext.A-23 appurte plot with
July 1984 11.2.94 Ext.A-20 28.5.94 Ext.A-22 Latest nant appurtenant
11.2.94 Before 28.5.94 31.10.99 Green Green Belt
(wrongly Cuttings After w.e.f. Belt in
showing cuttings 6.11.95 North
Road in
East)

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 NIL 529.35 304.35 90.00 304.35 Trapezium of 49.8 240.75
plot towards (3.16+9.57)/2
West ×30231.45
5 Green Belt Rectangle Rectangle Rectangl Trapezium Rectangl Trapezium of – 231.45
Area towards of of e of (7.23+7.93)/ e of (7.93+7.50)2
West (7.93×30) (7.93×30 7.93×30 2×30227.4 7.93×30 ×30231.45
237.90 237.90 237.90 237.90
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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CA NO.253 OF 2017

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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CA NO.253 OF 2017

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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CA NO.253 OF 2017

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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CA NO.253 OF 2017

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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CA NO.253 OF 2017

“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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