Delhi District Court
North Delhi Municipal Corporation vs Vijay Kumar, 1/11 on 19 May, 2016
IN THE COURT OF SH. RAKESH KUMAR, MM TRAFFIC- CENTRAL, TIS
HAZARI COURTS, DELHI.
Challan No. 34572
Zone Sadar Pahar
Under Section 416,417r/w 461 of DMC Act.
North Delhi Municipal Corporation .............Complainant
Versus
Vijay Kumar,
S/o late Sh. Mangal Sain Jain,
R/o 4124, Aryapura, Subzi Mandi,
Near Arya Samaj Mandir,
Delhi. ............................. Accused
Date of institution of the Challan : 24.07.2014
Date of decision : 19.05.2016
Final order : Convicted
JUDGMENT
1. By this judgment I shall dispose of the complaint/challan filed by North Delhi Municipal Corporation (herein after called as NDMC) against the accused Vijay Kumar. The above said challan against the accused was issued on 01.07.2014 at about 2.00 pm. The allegation of the NDMC was that accused was found running an Atta North Delhi Municipal Corporation Vs.Vijay Kumar, 1/11 Chakki in the name and style "M/s Mangal Sain Jaswant Kumar" by using 5 KW approximately power load at the premises bearing no. 4124, Aryapura Subzi Mandi, Delhi, without having valid municipal license.
2. The above said complaint/challan was issued on 01.07.2014 and was filed in the Court on 24.07.2014. Notice was framed against accused on 11.12.2014. The notice of accusation was served upon the accused u/s 251 of Cr.P.C to which accused pleaded not guilty and claimed trial.
3. The NDMC/ complainant produced two witnesses CW1 and CW2 to prove the allegation. CW1 was Challaning officer, who had issued challan against the accused on 01.07.2014. CW2 is Deputy Law Officer (DLO), NDMC and he in his official capacity, lodged the abovesaid complaint in the court therefore his testimony was of formal nature.
4. Accused refuted the allegation levelled against him and contented that he was not running the abovesaid Atta Chakki at shop no. 4124, Aryapura, Subzi Mandi, Delhi. Accused claimed that the abovesaid Atta Chakki used to be run by his elder brother namely Sh. Jaswant Kumar as proprietor of M/s Mangal Sain Jaswant Kumar. To prove his point and refute the allegation levelled against him he himself appeared in the witness box as a witness DW2 and produced another witness Jaswant Kumar as DW1.
5. The NDMC produced two witnesses to prove the allegation against the accused. The testimony of CW2 was of formal nature, as he merely deposed about filing of complaint in the court in the capacity of complainant being Deputy Law Officer (DLO) of NDMC.
CW1 was Challaning officer and stated in his testimony that on 01.07.2014, at about 2.00 pm, he visited the premises bearing no. 4124, Aryapura, Near Arya samaj Mandir. He further deposed that during abovesaid visit he found the accused, Vijay Kumar was running Atta Chakki without having valid municipal license by using approximately 5 KW power load. CW1 further testified that, on inquiry accused did not produce any Municipal license, CW1 further testified that as accused did not show license to carry out abovesaid work, he issued the challan (Ex.
North Delhi Municipal Corporation Vs.Vijay Kumar, 2/11 CW1/A) against the accused. He further deposed that after issuing challan he took the signature of accused which is marked as mark B on the challan. He also identify the accused in Court.
6. Before appreciating the abovesaid testimony of Challaning officer/CW1 court deems it appropriate to look into the defence of accused, who himself appeared in the witness box as a defence witness (DW2) and testimony of DW1.
Accused, who also deposed as defence witness (DW2) stated in his testimony that shop no. 4124 at Aryapura Subzi mandi is in the name of M/s Mangal Sain Jaswant Kumar. He further deposed that abovesaid shop used to be run by his elder brother Jaswant Kumar. He further deposed that that on 01.07.2014 when one inspector from MCD visited the shop, his brother Sh. Jaswant has gone for lunch and he was sitting outside the shop. He further deposed that on that time Atta chakki was not in a running condition as repair was going on. He further submitted that said inspector asked his name and told him to go in Karkardooma Court. He further stated that inspector did not ask him regarding any license. He further stated that his brother had license since 1958 but MCD was not renewing the license since 1996 and the matter is pending with MCD. He further deposed that abovesaid shop was a rented shop and Sh. Mahender Singh was landlord and he in collusion with the abovesaid inspector got issued the challan.
Another defence witness DW1 who was stated by accused to be his brother namely Jawant Kumar was produced by accused as a defence witness (DW1). DW1 deposed in his testimony that firm in the name and style M/S Mangal Sain Jaswant Kumar was carrying business of Atta Chakki, at shop no. 4124, Arya Pura Subzi Mandi Delhi. DW1 deposed that his father expired in 1990 and thereafter his mother Smt. Shakuntla Jain was looking after the business in the said shop. He also deposed that Municipal licenses (which are already Exhibited as Ex. CW1/A1 to Ex. CW1/A2 and Ex. CW1/ A3) was issued by MCD in the name of M/S Mangal Sain Jaswant Kumar in 1958 and thereafter license was renewed from time to time. He further stated that his mother informed him about this case telling that one person from MCD had come at the shop who had issued the North Delhi Municipal Corporation Vs.Vijay Kumar, 3/11 challan and obtained the signature of his brother Sh. Vijay Kumar. He also submitted that said shop was rented shop and Mahender Singh was the landlord who was harassing by filing false and frivolous complaint/case as he wanted to get the shop vacated.
(7) After perusing the defence of accused the defence taken by accused can be summarized as follow:-
(i) Accused defence was that he was not carrying the abovesaid Atta Chakki at the time of issuance of challan. The defence of the accused was that his elder brother Jaswant Kumar used to run the abovesaid Atta Chakki in the name of proprietorship firm (M/s Mangal Sain Jaswant Kumar) and he had license to run abovesaid Atta Chakki since 1958. The further defence of the accused was that MCD official visiting abovesaid challan premises did not ask for any Municipal license from him and without asking anything from him issued challan against him
(ii) The further defence of the accused was that the Atta Chakki was not in running condition at the time of issuance of challan as it was not in operation for the last one month prior to issuance of challan. The defence counsel contended that neither any photographs were filed to show that Attah Chakki was running nor any independent witness was joined to prove the allegation against the accused as such accused is entitled to benefit of doubt.
(iii) Beside abovesaid defence based upon facts of the case, the Ld. Defence counsel also submitted that the complainant i.e. DLO has not authority to file present complaint in the court.
8. Now before coming to any conclusion the court will appreciate the testimony of prosecution and defence witnesses as well as other material available on record.
The first and foremost defence of the accused was that he was not running abovesaid Atta Chakki. Accused claimed that his elder brother used to run abovesaid Atta Chakki. Before adjudicating upon the claim of NDMC that accused was running abovesaid Atta Chakki and counter claim of accused that he was not running the Atta Chakki, Court North Delhi Municipal Corporation Vs.Vijay Kumar, 4/11 will look into the testimony of CW1 as well as testimony of DW1 and DW2.
CW1 stated very categorically and unambiguously that when he visited the challan premises accused was found running Atta Chakki without valid municipal license by using approximately 5 KW power. He further stated in his cross examination that he inquired from the accused about the sanctioned load. Per contra, the accused stated that he was not running the Atta Chakki. The accused appeared in the witness box as DW2 and testified that Atta Chakki used to be run by his elder brother Jaswant Kumar as proprietor of M/s Mangal Sain Jawant Kumar. He further testified that at the time of issuance of challan his elder brother has gone for lunch and in his absence challan was issued against him. Accused also produced another witness DW1 who was the elder brother of accused. DW1 testified in his examination in chief that firm in the name and Style M/s Mangal Sain Jawant Kumar was carrying business at shop no. 2441, Aryapura , Subzi Mandi and said business include running of Atta Chakki. He further testified that his father expired in 1990 and thereafter his mother Smt. Shakuntla Jain was looking after the business in the said shop. He further testified that his mother informed him about this case telling him that one person from MCD had come and issued challan against his brother Vijay Kumar.
From the perusal of abovesaid testimony of DW1 and DW2, It is clear that both are making contradictory plea which is clear from their testimony. On the one hand accused claimed that his brother i.e. DW1 used to run the abovesaid Atta Chakki and on the other hand DW1 stated that his mother was looking after the business which include the running of Atta Chakki. It is clear one is saying mother was looking after the business another is saying elder brother was looking the business. In these circumstances the testimony of DW1 and DW2 creates doubts in the mind of court regarding abovesaid claim of the accused that he was not running the Atta Chakki and testimony of DW1 and DW2 also does not seem reliable on the abovesaid aspect and therefor does not inspire the confidence of court. Beside abovesaid fact, accused /DW2 had admitted in his cross examination that he had filed one application on 28.12.2006 which was marked as mark DW2/CA North Delhi Municipal Corporation Vs.Vijay Kumar, 5/11 for the grant of adhoc registration of traders under the scheme -2006 for shops/ commercial establishment. Court is unable to understand if accused was not the occupant and did no not use to run Atta Chakki then why he has filed abovesaid application in his name for the registration of shop bearing no. 4124, Ground Floor, Aryapura, Subzi Mandi, Delhi, in which the abovesaid Atta Chakki was running. It is clear that the abovesaid defence of accused that he was not running the Atta Chakki and his elder brother used to run Atta Chakki appears to be afterthought. It also appears that accused has taken help of his elder brother to rescue himself from this case and produced him as DW1. Accused himself became DW2 and the testimony of both the brother DW1 and DW2 as well as other material were contradictory to the claim of accused that he was not running the Atta Chakki. The very contradiction demolishes and falsify the stand of accused. Moreover, as far as the abovesaid fact regarding person behind the running of Atta Chakki shop is concerned, the court is also of view that accused might have easily proved that he was not running the Atta Chakki by producing the material which would show the occupant of challaned premises. It is clear from the testimony of CW1 that he categorically stated that accused was found running the Atta chakki. Accused disputed the claim of MCD and stated that Atta Chakki used to be run by his elder brother and at the relevant time of issuance of challan his brother had gone for lunch and in his absence Challaning officer had issued challan against him. In the view of court accused could have easily rebut the allegation by showing that his elder brother was occupant of the challaned premises. In his testimony both accused as well as DW1 i.e. elder brother of the accused admitted that challan premises was a rented shop. It is very surprising that the challan premises was a rented premises and accused could have easily file the rent agreement or produce any other evidence to show that occupant of challaned premises was his elder brother but accused did not produce any material to rebut the allegation of NDMC that he was found running the Atta Chakki. In the view of court mere bald assertion just to save oneself from the command of law is not enough. Admittedly the abovesaid shop was a proprietorship firm and accused himself admitted that in 1958 license was issued in the name of his father to run the abvoesaid Atta Chakki. It is clear that in the case in hand accused could have easily shown to the court that after North Delhi Municipal Corporation Vs.Vijay Kumar, 6/11 the death of his father the business of Atta Chakki solely devolve upon his elder brother and the elder brother was the occupant of the challan premises and in the capacity of occupant he used to run Atta Chakki in the challan premises. But except bald claim accused has not produced any material to disprove the allegation leveled by NDMC. In view of clear and categorical testimony of CW1 court is of view that Challaning officer has proved that accused was present at the challan premises and he was found running the Atta Chakki. Accused had also himself admitted his presence in the challaned premises. In the light of abovesaid fact the defence of accused does not seems plausible and does not inspire the confidence of court. Per contra the testimony of CW1 was categorical and unambiguous and accused remained unsuccessful in eliciting any discrepancy in the testimony of CW1. Except making contradictory and implausible claim accused had not produced any material which could impeach the testimony of the CW1. For the abvoesaid reason the testimony of CW1 appears to be reliable and trustworthy and also inspire the confidence of court.
Ld. Defence counsel suggested that the Challaning officer had falsely implicated the accused in connivance with the landlord of the challan premises. The court is of view that even if suggestion of ld. Defence counsel is accepted then also it remains wholly immaterial fact as the requirement of law is very clear i.e. a person must run an Atta Chakki after taking license. The motive howsoever maladfide is not relevant in this case. The only requirement of law is that accused must have a valid license to run the abovesaid Atta Chakki. At all cost and in any circumstances accused will have to show the license to run the trade for which license is required and instead of showing license he cannot take defence that Challaning officer has issued challan in connivance with some other person. Malafide motive may be a relevant circumstances if accused would be able to show valid license in the court but in absence of valid municipal license it cannot be a relevant circumstances.
North Delhi Municipal Corporation Vs.Vijay Kumar, 7/11
9. The accused has further claimed that Challaning officer had not asked for and demanded any municipal license. As far as above defence is concerned court is of view that accused could have easily produce the valid MCD license in the court and dispel all the allegations of NDMC. Accused himself admitted that he had no valid license on the date of issuance of challan as he himself stated that the license expired in 1996 and after 1996 he did not renew the license for running abovesaid Atta Chakki. He further admitted in his cross examination that neither he nor his brother had ever applied for renewal of license since 1996. He further admitted in his cross examination that one application which was marked as mark DW2/CA was filed by him for grant of adhoc registration of traders under schemes for shops/establishment. It is clear from abvoesaid admission of the accused that the license to run abovesaid Atta Chakki expired in 1996 but after 1996 the abovesaid license was not renewed by the accused. Therefore it is clear from abovesaid facts and circumstances that accused had no valid license to run the abovesaid Atta Chakki on the date of issuance of challan and for the above reason the testimony of CW1 that accused had not produce valid license on demand appears to be plausible and reliable.
10. Accused further contended that Atta Chakki was not in a running condition on the date of issuance of challan. He contended that from one month prior to issuance of challan, the Atta Chakki was not operational. Just opposite to the claim of accused, the Challaning officer testified that when he visited the challaned premises accused was found running abvoesaid Atta chakki. Now the question is whose testimony is believable. The accused contended that Challaning officer had not filed any photographs not cited any independent witness to prove the allegation that accused was running Atta Chakki on relevant date and time in issue. On the abovesaid aspect the testimony of Challaning officer was very categorical and unambiguous. Challaning officer very categorically stated that when he visited the challan premises on 01.07.2014, accused was found running abovesaid Atta Chakki. Court is unable to understand why Challaning officer would falsely implicate the accused particularly when the Atta Chakki was not in a running condition. If the motive of Challaning officer would have been to falsely implicate the accused then he would North Delhi Municipal Corporation Vs.Vijay Kumar, 8/11 have easily done it during the period when according to the accused himself the Atta Chakki was operational i.e. one month before the issuance of challan. The accused has not stated any particular reason for issuance of challan on 01.07.2014. The court is of opinion that if the motive of Challaning officer would have been malafide then why he would have taken risk to issue challan when Atta Chakki was not running. In pursuance of malafide motive he could have easily issued the challan against the abovesaid Atta Chakki when it was running. No one was going to prevent him from issuing challan against the abovesaid Atta Chakki when it was in running condition. Accused had also not produce any material which could show the difference if any, it would make if instead of 01.07.2014 challan would have been issued one month back just preceding the date of issuance of challan. As the accused himself admitted that he had not renewed his license after 1996, therefore from the perspective of the Challaning officer situation would have remain same on the date of issuance of challan i.e. 01.07.2016 as well as one month before the issuance of challan. It is not the case of accused that one month before the issuance of challan he had valid license therefore Challaning officer did not issue the challan when his license was valid and he deliberately waited for a month to issue challan on 01.07.2014 when his license expired. In view of abvoesaid circumstances the defence of accused does not seem plausible and court does not see any reason to disbelieve the testimony of CW1. The testimony of CW1 inspire the confidence of Court. As far as submission of ld. Defence counsel that Challaning officer has not taken photographs of the Atta Chakki in running condition nor joined any independent witness to prove the allegation is concerned, the court is of opinion that there is no force in the abovesaid submission of the ld. Defence counsel. The testimony of CW1 which is otherwise reliable and inspire the confidence of court cannot be discarded solely on the ground that the photographs of Atta Chakki was not taken by him. It is not the mandatory requirement of law. Otherwise also CW1 cannot be blamed for not taking photographs as it is the duty of concerned department to provide necessary equipment like camera to take photographs of the challan premises. If the department had not provided camera to Challaning officer then court would be unjustified in his approach if court discard the testimony of Challaning officer which is otherwise reliable only on the North Delhi Municipal Corporation Vs.Vijay Kumar, 9/11 abovesaid ground. Per contra it is appreciable, if public official work diligently and efficiently despite of lack of infrastructure.
11. In the view of court non joining of independent witness is also not fatal if testimony of public official is trustworthy and inspire the confidence court. In the case in hand court has already recorded that testimony of CW1 /Challaning officer is reliable and inspire the confidence of court therefore court does not see any reason to discard the testimony of CW1 for reason of non joining of independent witness.
12. Ld. Defence counsel further submitted that CW2/ complainant (DLO) had no authority to file a present complaint therefore present complaint against the accused was not maintainable. In the view of court there is no force in the abovesaid submission of Ld. Defence counsel. In the present case CW2 had file complaint in the capacity of deputy law officer (DLO) of the NDMC and authority to file complaint was delegated to him by commissioner of NDMC in the capacity of law officer of the NDMC.
13. As discussed aforesaid accused was not successful in bringing out any discrepancies in the testimony of CW1 and evidence produced by accused was also found unreliable by the court. Accused also did not produce any material nor the court find any material which could create doubt in the mind of court regarding truthfulness of the testimony of CW1. The testimony of CW1 was reliable and unambiguous. In these circumstances court is of conclusion that NDMC has successfully proved the guilt of accused beyond reasonable doubt.
14 As herein above discussed accused was found using premises for running Atta Chakki and since he was using electricity for running Atta Chakki without written permission of commissioner of NDMC therefore accused is hereby held guilty and convicted for the offence u/s 416 of the DMC Act.
15. As herein above discussed accused was also found using premises for the purpose mentioned in Schedule Eleventh, Part-I, Entry 4 of DMC Act as accused was found using abovesaid challaned premises for running Atta Chakki without having valid license therefore accused is hereby also held guilty and convicted for the North Delhi Municipal Corporation Vs.Vijay Kumar, 10/11 commission of offence u/s 417 of the DMC Act.
16. Let the accused be heard on the quantum of sentence. Copy of judgment be given free of cost to the convict.
(RAKESH KUMAR)
Judgment pronounced in open court. MM Traffic-Central,
19.05.2016
North Delhi Municipal Corporation Vs.Vijay Kumar, 11/11
Challan No. 34572
Zone:- Sadar Pahar
U/S :- 416,417r/w 461 of DMC Act.
North Delhi Municipal Corporation VS. Vijay Kumar
19.05.2016
Present: Ld. counsel for NDMC.
Convict in person.
I have heard the convict as well as Ld. counsel for NDMC on the point of sentence. Ld. counsel for NDMC pleaded strict punishment be passed against the convict as he was using the challaned premises for carrying Atta Chakki without having MCD license. It is submitted by convict that he would not repeat the offence in future and pleaded for leniency in punishment.
Heard.
In the case in hand convict was found running the Atta Chakki in the challan premises without having valid municipal license. Convict was very well aware about this fact that he has been using above said premises for carrying Atta Chakki without having a valid municipal license and this is certainly an aggravating factor. On the other hand MCD has not shown any material that convict is habitual offender.
Considering all the above said facts and circumstances convict is sentenced to pay fine of Rs. 1000/- for the commission of offence u/s 416 of the DMC Act. In default of payment of fine convict shall undergo SI for 10 days. Convict is also sentenced to pay fine of Rs. 500/- for the commission of offence u/s 417 of the DMC Act. In default of payment of fine convict shall undergo SI for 10 days.
Fine paid.
Nothing remains to be done now. All the bonds executed by convict stands canceled. Documents if any be returned. File be consigned to record room after due completion.
(Rakesh Kumar) MM Traffic-Central,Delhi 19.05.2016 North Delhi Municipal Corporation Vs.Vijay Kumar, 12/11