Delhi District Court
Case Titled As T.S. Marwah & Ors vs . State 2008(4) Jcc 2561 In Which on 18 April, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State
Vs.
Vishal Malhotra
FIR No.390/2017
P.S Ambedkar Nagar
JUDGMENT
1. Sr. No. of case 224/2018
2. Date of institution 09.01.2018
3. Name of the complainant ASI Jagdish Prasad
4. Date of commission of offence On 08.09.2017 at 10:00 P.M.
5. Name of accused Vishal Malhotra
S/o Sh. Krishan Kumar
R/o House No.176, Block-G, 1st
Madangir, Ambedkar Nagar, New
Delhi-110062.
6. Offence complained of 3 DPDP Act
7. Plea of accused Accused pleaded not guilty
8. Date of reserving the judgment 18.04.2018
9. Final order Acquitted
10 Date of such judgment 18.04.2018
FIR No.390/2017 PS Ambedkar Nagar Page-1/9
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. The story of the prosecution is that on 08.09.2017 at 10:00 P.M. in front of Gali No.34 or 35, DDA Flats, BRT Road, Madangir, New Delhi accused affixed one board on an electricity pole on which "SAC Sai Academy of Commerce (The Ultimate Destination for Commerce Aspirants) Vishal Malhotra Classes XI-XII B.Com (PLH), CA- (CPT/IPCC), CS-(Foundation/Executive) Accounts, Economics, Business Studies, Maths, IP Costing, Taxation, Law, FM 23/664, IInd Floor, DDA Flats (above Chawala General Store), Madangir, N.D. 62, 9999349014, 9999349019" was written. Hence, accused was chargesheeted under section S.3 of the Delhi Prevention of Defacement of Property Act 2007 (henceforth referred to as 'DPDP Act').
2. In compliance of Section 207 Cr.P.C, copy of the chargesheet and the documents annexed therewith was supplied to accused and he was served with notice u/sec 3 of Delhi Prevention of Defacement of Property Act, 2007 (in short 'DPDP Act') to which he pleaded not guilty and claimed trial.
3. In order to substantiate its case, the prosecution examined 07 witnesses in all.
3.1 PW-1 Ct. Sadhu Ram deposed that on 08.09.2017, at around 10:00 P.M. he alongwith IO ASI Jagdish Prasad were on patrolling duty where they reached in front of gali no.34 and 35 DDA Flats, BRT Road and FIR No.390/2017 PS Ambedkar Nagar Page-2/9 saw one hoarding board was affixed on electric pole bearing "Sai Academy of Commerce Vishal Malhotra" was written. One private photographer was called by IO and photographs of said hoarding board were clicked. Thereafter, said board was removed and same was taken into his possession. Tehrir was prepared by IO and same was given to him to be sent to PS. Site plan was also prepared by IO. Accused was also searched. IO also recorded his statement. Witness correctly identified the case property i.e. two photographs of said hoarding vide Ex.PW1/A and hoarding vide Ex.P-1.
3.2 PW-2 ASI Desh Pal Singh is duty officer. He received a rukka from Ct. Sadhu Ram and on the basis of above said rukka, FIR Ex.PW2/B was registered by him. He made an endorsement on the rukka vide Ex.PW2/A. He also prepared certificate u/sec 65 B Indian Evidence Act vide Ex.PW2/C. 3.3 PW-3 Anil Chhabra deposed that he is running a printing press in the name and style of Chhabra Flex Printing at 143B, Shop No.4, Madangir Village, BRT Road, New Delhi. He further deposed that board was printed from his shop. His statement was recorded by IO in this regard. Witness correctly identified the case property i.e. banner/board vide already Ex.P-1 which was ordered to be prepared by him by accused. Witness correctly identified accused before the court.
3.4 PW-4 Constable Jauni deposed that on 08.09.2017, he was on patrolling duty with IO ASI Jagdish Prasad, HC Ram Avtar, Ct. Lakhan and FIR No.390/2017 PS Ambedkar Nagar Page-3/9 Ct. Sadhu Ram in area of DDA Flat, BRT Road, Ambedkar Nagar, New Delhi. During patrolling, when they reached in front of gali no.34-35, DDA Flat, BRT Road, he noticed one board was affixed on an electric pole bearing details "SAC Sai Academy of Commerce". One private photographer was called by IO and photographs of said board/banner were taken. Thereafter, said board/banner was removed and same was taken into possession. Rukka was prepared by IO and same was sent through Ct. Sadhu Ram to PS Ambedkar Nagar for registration of FIR. IO recorded his statement. Thereafter, he left the spot. Witness correctly identified the case property i.e. two photographs of said banner/board vide already Ex.PW1/A and banner/board vide already Ex.P1.
3.5 PW-5 HC Ram Avtar deposed that on 08.09.2017, he was on patrolling duty with IO ASI Jagdish Prasad, Ct. Jauni, Ct. Lakhan and Ct. Sadhu Ram in area of DDA Flat, BRT Road, Ambedkar Nagar, New Delhi. During patrolling, when they reached in front of gali no.34-35, DDA Flat, BRT Road, he noticed one board was affixed on an electric pole bearing details "SAC Sai Academy of Commerce". One private photographer was called by IO and photographs of said board/banner were taken at the instance of IO. Thereafter, said banner/board was removed and same was taken into possession. Rukka was prepared by IO and same was sent through Ct. Sadhu Ram to PS Ambedkar Nagar for registration of FIR. IO recorded his statement. Thereafter, he left the spot. Witness correctly FIR No.390/2017 PS Ambedkar Nagar Page-4/9 identified the case property i.e. two photographs of said banner/board vide already Ex.PW1/A and banner/board vide already Ex.P1.
3.6 PW-6 ASI Jagdish Prasad, IO of the case deposed that on 08.09.2017, he was on patrolling duty with HC Ram Avtar, Ct. Sadhu, Ct. Lakhan and Ct. Jony in the area of DDA Flat, BRT Road, Ambedkar Nagar. During patrolling, when they reached in front of gali no.34-35, DDA Flat, BRT Road, Ambedkar Nagar, he noticed one hoarding was affixed on an electric pole which had "Sai Academy, Vishal and mobile number 9999349014 and other mobile number" written on it. He clicked the photographs of the said hoarding with his private mobile phone and said hoarding was removed. After taking measurement of the said hoarding same was seized by him vide seizure memo Ex.PW6/A. Tehrir Ex.PW6/B was prepared by him and handed over to Ct. Sadhu for registration of FIR. Site plan without scale was prepared by him vide Ex.PW6/C. He also recorded statement u/sec 161 Cr. P.C. of HC Ram Avtar, Ct. Lakhan, Ct. Jony and Ct. Sadhu. After registration of FIR, Ct. Sadhu gave him original rukka and copy of FIR. Thereafter, on the abovesaid mobile number, accused was contacted and later on informed that accused was outside. He also served a notice u/sec 41 A Cr. P.C. vide Ex.PW6/D upon accused and accused joined the investigation. He prepared an interrogation report vide Ex.PW6/E which was filed alongwith challan and same were submitted before the court. Witness correctly identified the case property i.e. two FIR No.390/2017 PS Ambedkar Nagar Page-5/9 photographs of said banner/board vide already Ex.PW1/A and banner/board vide already Ex.P1.
3.7 PW-7 Ct. Lakhan Singh deposed that on 08.09.2017, he was on patrolling duty with IO ASI Jagdish Prasad, HC Ram Avtar, Ct. Sadhu and Ct. Jony in the area of DDA Flat, BRT Road, Ambedkar Nagar. During patrolling, when they reached in front of gali no.34-35, DDA Flat, BRT Road, Ambedkar Nagar, he noticed one hoarding was affixed on an electric pole which was bearing "Sai Academy of Commerce, Vishal Malhotra and some mobile number". IO clicked the photographs of the said hoarding with his private mobile phone and said hoarding was removed. After taking measurement of the said hoarding same was seized by IO vide seizure memo already Ex.PW6/A. Tehrir already Ex.PW6/B was prepared by IO and handed over to Ct. Sadhu for registration of FIR. Site plan without scale was prepared by IO vide already Ex.PW6/C. IO also recorded his statement u/sec 161 Cr. P.C. After registration of FIR, Ct. Sadhu gave him original rukka and copy of FIR. Witness correctly identified the case property i.e. two photographs of said banner/board vide already Ex.PW1/A and banner/board vide already Ex.P1.
4. Prosecution evidence was closed vide order dated 13.04.2018.
5. Statement of the accused U/s 313/281 Cr.P.C. was separately recorded wherein all the incriminating evidence was put to him for seeking his explanation.
FIR No.390/2017 PS Ambedkar Nagar Page-6/9
6. I have heard Ld. APP for the State and Ld. counsel for the accused. I have carefully perused the case file in light of the submissions advanced by the respective counsels.
Brief reasons for final decision
7. Defence relied upon judgment of Hon'ble High Court of Delhi in case titled as T.S. Marwah & Ors Vs. State 2008(4) JCC 2561 in which Hon'ble High Court of Delhi has laid down as below:-
"A bare look at Section 3 (1) goes to show that the offence committed therein would be punishable only if the defacement is done in respect of property in public view by writing or marking with ink, chalk, paint or any other material. There is nothing in the charge sheet filled against the petitioner to indicate that any property was defaced by writing or marking with ink, chalk, paint or any other material. The only allegation is that the banner was put on an electric pole. Mere putting of the banner will not get covered by section 3 (1) of The West Bengal Prevention of Defacement of Property Act, 1976. It is true that Sec. 2(AA) defines defacement which includes impairing or interfering with the appearance, beauty, damaging, distinguishing , spoiling or injuring in any other way whatsoever, but Section 3 (1) is not all embrasing and it refers only such type of defacement for the purpose of prosecution as is done by writing or marking with ink, chalk, paint or any other material."
FIR No.390/2017 PS Ambedkar Nagar Page-7/9
8. Present charge sheet has been filed u/sec 3 of Delhi Prevention of Defacement of Property Act, 2007. Before Delhi Prevention of Defacement of Property Act, West Bengal Prevention of Defacement of Property Act, 1976 was prevalent in territory of state of Delhi. Provisions of Section 3 of both the above-mentioned Acts are almost same except one change in definition of Word Writing in Delhi Prevention of Defacement of Property Act. Section 2 (d) of Delhi Prevention of Defacement of Property Act defines writing as including printing, painting, decoration, lettering, ornamentation etc., produced by stencil. In West Bengal Prevention of Defacement of Property Act, "writing" was defined as including decoration, lettering, ornamentation, etc., produced by stencil.
9. The sole difference in definition of writing in both the Acts is inclusiveness of printing in Delhi Prevention of Defacement of Property Act.
10. Except addition of printing in definition of writing, provisions of Delhi Prevention of Defacement of Property Act and West Bengal Prevention of Defacement of Property Act for Section 3 of both the Acts are also same. So ratio in judgment of Hon'ble High Court of Delhi in T. S. Marwah's case (Supra) still holds good for present case as facts of present FIR No.390/2017 PS Ambedkar Nagar Page-8/9 case are similar to those in T. S. Marwah's case and putting up of banner/poster will not be covered u/sec 3 (1) of DPDP Act. In view of ratio of judgment in T. S. Marwah's case (Supra), no case u/sec 3 of Delhi Prevention of Defacement of Property Act is made out against accused. I am of the opinion that the accused is entitled to be acquitted for offence u/sec 3 of DPDP Act.
Announced in the open
Court on 18.04.2018 (Pooja Talwar)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 09 pages and each page is signed by me.
(Pooja Talwar) CMM (South), Saket Courts, New Delhi Digitally signed by POOJA POOJA TALWAR TALWAR Date:
2018.04.19 15:40:00 +0530 FIR No.390/2017 PS Ambedkar Nagar Page-9/9