Delhi District Court
Cc No. 1281/1 Mcd vs . P.C. Chandan 1/15 on 21 January, 2013
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE SAKET COURTS:
DELHI
In Re: MCD V. P.C. CHANDAN
CC No. 1281/01
U/s 347/461/466 of DMC Act 1957
Date of Institution of Case : 27.11.2001
Judgment Reserved for : 21.01.2013
Date of Judgment : 21.01.2013
JUDGMENT:
(a) The serial no. of the case :1281/01
(b) The date of commission of offence : 04.09.2001
(c) The name of complainant : MCD
(d) The name, parentage, of accused : P.C. Chandan s/o Late Sh. Chiman Dass,
R/o C72, Shivali Colony, Malviya Nagar,
New Delhi.
Present Address : As above
(e) The offence complained of : U/s 347/461/466 of DMC Act 1957
(f) The plea of accused : Pleaded not guilty
(g) The final order : Accused acquitted
(h) The date of such order : 21.01.2013
CC No. 1281/1 MCD Vs. P.C. Chandan 1/15
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 04.09.2001 at 11.45 am, accused P.C. Chandan was found using property No. 1/33A (First Floor), Satya Niketan, New Delhi for commercial purposes i.e. for running a shop/office in the name & style of M/s IEC Software Ltd. which was in contravention of the sanctioned/permissible use as per which the premises could be used only for residential purpose and thus thereby the accused has committed an offence punishable u/s 347/461/466 of DMC Act 1957.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. accused was supplied the documents. Thereafter vide orders dated 29.09.2004, notice u/s 347/461/466 of DMC Act 1957 was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined six witnesses, thereafter the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case. He also examined himself in his defence as DW1. A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 Sh. Sushil Kumar deposed that he was posted as Assistant Engineer CC No. 1281/1 MCD Vs. P.C. Chandan 2/15 (Building) in South Zone of the MCD during the year 2000 to 2001 and in discharge of his official duties he had verified the report of JE Sh. Vikas Gupta at point A on Ex. PW1/A vide his endorsement at point B. He deposed that instant matter relates to the misuse of the property No. 1/33A, First Floor, Satya Niketan, New Delhi. He deposed that he had submitted his report to Sh. Vijay Kadyan, Executive Engineer and identified his signatures at point D as he has seen him signing and writing in discharge of his official duties for obtaining further orders.
5. During cross examination he stated that after going through the contents report submitted by JE he verified the report of the JE. He stated that he had not personally visited the spot. He stated that he relied upon the report of JE. He denied the suggestion that the accused had no concern with the premises in question.
6. PW2 Sh. Brij Mohan, Clerk, Urban Development, GNCTD duly proved copy of notification dated 10.08.1990 as Ex. PW2/A.
7. PW3 Sh. Vikas Gupta deposed that he worked as Jr. Engineer in Building Department South Zone, MCD and was looking after the area of Satya Niketan during the year 2001. He deposed that on 04.09.2001 during his routine duty, he inspected the property no. 1/33A, First Floor, Satya Niketan, New Delhi and found that some commercial activity was going on in the name and style of M/s IEC Software Ltd. He deposed that he visited the property and met one person Sh. P.C. Chandan who told him that he is Centre CC No. 1281/1 MCD Vs. P.C. Chandan 3/15 Incharge of above mentioned company. He deposed that he asked him to show any permission from MCD but he did not show the same. He deposed that he came back in the office and consulted the record whereby found that the said property has been allowed for residential purposes only and therefore the prosecution report was got prepared by him which is Ex. PW1/A. He deposed that the said report was forwarded to AE, Building Sh. Sushil Kumar for necessary action.
8. During cross examination he stated that he does not maintain any record in respect of the premises visited by him in different areas. He stated that accused met him on the first floor of the premises in question. He stated that the portion which was misused by the accused was located at first floor of 1/33 A, (FF), Satya Niketan. He stated that he did not notice any other portion existing on the first floor other than the portion of accused. He stated that he did not notice as to what activity was going on at ground floor. He stated that he does not remember whether commercial activities were going on also at the ground floor. He stated that he did not visit above the first floor of 1/33A (FF) Satya Niketan, therefore he cannot say as to whether second floor was in existence and whether the same was under commercial use or not. He denied the suggestion that the accused was never the owner and in possession of first floor of the premises in question. He stated that he did not take any photograph at the time of visit. He stated that he did not collect any documents from the accused regarding ownership of the premises in question. He stated that he does not remember as if any prosecution was initiated by him against any CC No. 1281/1 MCD Vs. P.C. Chandan 4/15 other portion of the premises in question. He stated that he cannot say if the first floor was under the use and occupation of M/s Carrier Launcher and the sign board was displayed over there. He stated that he does not know if MCD had initiated prosecution in respect of the first floor premises against M/s Carrier Launcher or not at any time. He denied the suggestion that he had not visited the premises at all or that he has initiated a false case against the accused. He stated that he did not obtain the signature of the accused on the inventory prepared by him at the spot. He denied the suggestion that he was deposing falsely.
9. PW4 K.P. Singh deposed that he worked as Superintendent Engineer in South Zone, MCD in the year 2001 and one prosecution report was placed before him by the official of Building Department, South Zone which was in regard to offence of change of use from residential to commercial in premises No. 1/33A (FF), Satya Niketan, New Delhi. He deposed that he forwarded the said report to Deputy Commissioner, South Zone vide his endorsement available on the back of this report at point A to A1 on Ex. PW4/A. He deposed that during the relevant period he worked under Sh. Manoj Kumar, Deputy Commissioner, who accorded the prosecution sanction. He deposed that the criminal complaint which has been filed under his signatures, same are point A,B,C and D on Ex. PW4/B.
10. During cross examination he stated that he does not remember the exact date when CC No. 1281/1 MCD Vs. P.C. Chandan 5/15 the report was placed before him. He stated that he does not remember if any documentary evidence regarding the ownership of the accused in respect of 1/33A, First Floor, Satya Niketan was placed along with the report or not. He stated that he did not verify the facts contents of the report personally and only relied upon the report and documents placed before him. He stated that he does not remember what were the documents enclosed with the report. He stated that he did not personally visit the site. He stated that he cannot comment whether the accused was never the owner or in possession of the premises in question as he did not visit the site. He denied the suggestion that he did not apply the mind at the time of forwarding the report. He stated that he can refer back the report if not satisfied for further clarification. He stated that the present report was forwarded to higher authorities after satisfying himself with the report of JE, AE and EE however he did not personally take any step to verify the contents of the report. He denied the suggestion that the accused has been falsely implicated in present case though he was neither the owner nor in possession of the premises in question. He stated that he does not recollect if any report in respect of premises other than in question of the said building was put up before him or not. He denied the suggestion that he was deposing falsely and incorrectly to support the case of the prosecution.
11. PW5 Sh. Manoj Kumar deposed that he was posted as Deputy Commissioner, South Zone, MCD w.e.f. July, 2001 to August, 2002 and during his said tenure he had received a prosecution report in respect of property no. 1/33A (First Floor), Satya Niketan, CC No. 1281/1 MCD Vs. P.C. Chandan 6/15 New Delhi, prepared by the then J.E. Sh. Vikas Gupta, verified by the then A.E. Sh. Sushil Kumar, forwarded by the then Executive Engineer and recommended by the then S.E. Sh. K.P. Singh. He deposed that he considered the said report and accorded sanctioned for prosecution u/s 347 of D.M.C. Act against the accused and his endorsement in this regard are at Point AA on Ex. PW4/A and his signatures are at point XX on Ex. PW4/A. He deposed that the present compliant has been filed by him which is Ex. PW4/B and it bears his signature at point A, B, C & D. He deposed that he is empowered to file the said complaint by virtue of notification dated 10.08.1990.
12. During his cross examination he stated that he never visited the site and merely prepared the prosecution report upon the report of J.E. as well as A.E. He stated that he sanctioned the prosecution on the basis of the report/record submitted by the J.E., forwarded by the A.E., E.E. and S.E. He stated that he does not have any idea of any adverse material against the officials who prepared the report. He stated that he does not know whether any earlier prosecution has been sanctioned against the property in question. He stated that it could be possible to verify about earlier prosecution if the same was brought to his knowledge. He stated that it is not possible for him to file any report regarding the previous sanction of the property in question as he has since been transferred and presently not working with MCD. He denied the suggestion that he was deposing falsely. He denied the suggestion that he was aware about the previous sanction of the property in question but deliberately withholding the said fact.
CC No. 1281/1 MCD Vs. P.C. Chandan 7/15
13. PW6 Sh. Vijay Kumar Kadyan deposed that he was posted as Executive Engineer (Building), South Zone, MCD in the year 2001 and during his said tenure, he had received a prosecution report prepared by the then J.E. Sh. Vikas Gupta and verified by the then A.E. Sh. Sushil Kumar, which he had forwarded to the then S.E., South Zone. His signature in this regard at point D on Ex. PW1/A.
14. During his cross examination he stated that he never visited the site and merely forwarded the prosecution report prepared by the J.E. as well as A.E. He stated that he does not have any idea of any adverse material against the officials who prepared the report. He stated that he does not know whether any earlier prosecution has been sanctioned against the property in question. It could be possible to verify about earlier prosecution if the same was brought to his knowledge. He denied the suggestion that he was deposing falsely. He denied the suggestion that he was aware about the previous sanction of the property in question but deliberately withholding the said fact.
15. This so far is the evidence led by complainant MCD in the present matter. The accused also examined himself in his defence.
16. DW1 P.C. Chandan deposed that property no. 1/33A, Village Arak Pur, Bagh Mochi was purchased by Col. Mohan Lal Chandan his nephew on 27.06.1998. Copy of GPA and agreement to sale is Ex. DW1/A. He deposed that the property comprises of basement, CC No. 1281/1 MCD Vs. P.C. Chandan 8/15 ground floor, first floor, second floor, third floor and terrace and built on 100 Sq. yards. He deposed that the property was purchased by Sh. M.L. Chandan on his behalf as well as on his behalf as he was out of India at that time. He deposed that they made a mutual understanding regarding the partition of property verbally. However the MoU was drawn on 16.06.1996 and signed by M.L. Chandan as well as by him when he returned back tto India. He deposed that according to the MoU the basement, ground floor and first floor was under the share of Mr. M.L. Chandan and second floor, third floor and terrace went tto his share. The MOU is Ex. DW1/B . He deposed that both of them he and M.L. Chandan started residing in their respective portions. He deposed that on 03 rd of December 1999 Mr. M.L. Chandan sold his share of property first floor to Mr. Gautam Puri, Proprietor of Carrier Launcher Company vide registered sale deed and Mr. Gautam Puri started his company known as Carrier Launcher on the first floor. Photocopy of sale deed is Mark X. He deposed that Mr. M.L. Chandan also sold ground floor and basement to other parties and shifted from there. He deposed that they had also requested assessor and collector, MCD South zone to notify them the house tax payable on their respective properties and in October 2003 assessor and collector gave his assessment of his property and accordingly he paid the amount after deducting the amount which was already paid by him. Copy of same are Ex. DW1/C and D. He deposed that he has never been the owner or occupier in any manner of first floor, 1/33A, Satya Niketan, New Delhi as charged by MCD in the notice. He also deposed that he had never been the owner or occupier of property first floor, 1/33A, Arak Pur, Bagh Mochi. He deposed that he has been falsely implicated by CC No. 1281/1 MCD Vs. P.C. Chandan 9/15 MCD due to reasons best known to them.
17. During his cross examination he admitted that documents produced by him pertain to ownership of property in question. He stated that the first floor of the property was never under his ownership or occupation. He admitted that the GPA as exhibited above is registered at Noida. He voluntarily stated that at the time of the transaction he was not in India. He admitted that MOU etc are notarized only. He denied the suggestion that he was the owner/ occupier of the property during the period in question. He denied the suggestion he has been rightly prosecuted being the owner/ occupier of said property.
18. I have heard the arguments advanced at bar by the learned defence counsel as also the learned AMP for MCD. I have also carefully gone through the evidence recorded in the matter and perused the documents placed on record by complainant/MCD in this case.
19. After going through the material on record and giving my thoughtful consideration to the rival contentions raised at bar I am of the opinion that the complainant/MCD has miserably failed to bring home the guilt against the accused.
20. In order to establish its case the MCD/ complainant had to prove beyond reasonable doubt that premises bearing no. 1/33A, First Floor, Satya Niketan, New Delhi was being used by accused P.C. Chandan for running an office in name of M/s IEC CC No. 1281/1 MCD Vs. P.C. Chandan 10/15 Software Ltd. i.e. commercial purposes whereas the said premises could only be used for residential purposes. However, the prosecution could neither connect the accused with the premises in question nor could it even remotely establish that an office as alleged was being run from the premises in question.
21. During the entire trial prosecution could not bring on record any document to connect the accused with the premises in question. No document of ownership or any other document in the form of any lease /license agreement could be brought on record by MCD/complainant to connect the accused with the premises in question. The star/material witness of the prosecution was JE Sh. Vikas Gupta who was examined as PW3 as it was his inspection of the premises which led to the present prosecution against the accused however his deposition did not inspire confidence and suffered from numerous inconsistencies.
22. Though PW3 Sh. Vikas Gupta claimed that on 04.09.2001 he had visited/inspected the premises in question however during the cross examination by Ld. Defence counsel the witness fumbled and could not withstand the grilling cross examination. When he was asked to give the description of the premises in question his answers/statement remained anything but satisfactory. For example he could not state/describe what was the kind of activity carried on around the premises in question i.e. whether commercial or residential. In fact he could not even state with force/conviction as to whether there was any second floor over the premises in question or whether the ground floor or the second floor at the CC No. 1281/1 MCD Vs. P.C. Chandan 11/15 premises in question was being used for commercial purposes or not. All this casts serious doubts upon his claims that he visited the property.
23. Doubts were also created regarding the visit of the JE at the premises in view of his admission during the cross examination wherein he stated that "I did not obtained the signature of the accused on the inventory prepared by me at the spot". If indeed the JE had visited the premises he should have obtained the signatures of the accused if he was indeed available there because it is not his case the accused had refused to sign the inventory prepared by him.
24. The JE i.e. PW3 categorically admitted during his cross examination that he did not make any efforts to verify the ownership of premises in question. He admitted that he did not collect any documents from the accused regarding the ownership of premises in question. Thus there is no document to even remotely prove that the accused is the owner of premises in question or for that matter anyway connected to it.
25. His testimony makes it amply clear that no efforts whatsoever was made by him or any other concerned official of the Building Department Municipal Corporation of Delhi to substantiate the claim of occupation and misuser of the premises by the accused. Some documents should have been collected by the JE and produced in the court during the trial to connect the accused with the premises in question. The JE who had prepared the CC No. 1281/1 MCD Vs. P.C. Chandan 12/15 prosecution report ought to have made some efforts so as to give some weightage to his prosecution report/present complaint. If indeed an office was being run from the premises in question then the JE ought to have collected some material from Sale Tax Department or the Income Tax Department or Bank or atleast one or two photographs showing the office in question running at the premises. He admitted during his cross examination that he did not take any photograph at the time of his visit. In the absence of any photographs or report from Sale Tax Department or any other documentary or oral proof no presumption can be drawn that indeed the premises was being used for running an office much least by the accused.
26. Though Ld. AMP for MCD relied upon two judgment of Hon. High Court of Delhi titled as MCD Vs. Bhujbir Singh dated 17.01.1997 and another titled as Surender Singh Vs. MCD dated 30.11.2011 while arguing that ownership was irrelevant i.e. MCD was not required to prove that the accused was owner of the premises in question. However I do not agree with the Ld. AMP for MCD. Firstly both the above rulings were regarding unauthorized construction wherein the liability is affixed on the person carrying on the construction in contravention of the building by laws. Secondly, if not the ownership then alteast MCD was expected/bound to prove that the accused was somehow related to the property/premises in question i.e. either as a landlord or a tenant or a licensee. Unless the accused is connected with the property no liability can be affixed upon him. As is the case MCD failed to connect the accused with the premises in question. Though it was claimed CC No. 1281/1 MCD Vs. P.C. Chandan 13/15 by the JE in his inspection report that the accused was the Centre Incharge with M/s IEC Software Ltd. which was running at the premises but I fail to understand on what basis he claimed so. There is no documents whatsoever to even remotely substantiate the claims of the JE.
27. To the contrary the accused has been successful in throwing away the case of the prosecution/creating grave doubts upon it by way of his defence evidence. The documents produced by the accused i.e. DW1/A to D go on to prove/establish that he was not the owner or anyway associated with the premises in question. The documents which are registered and notarized and relate back to year 19961999 in fact shook the entire foundation of the prosecution story thus rendering it unreliable. These documents proved that the accused was neither the owner nor occupier of the premises in question and in fact it belonged to his nephew M.L. Chandan who had further sold it to Mr. Gautam Puri in the year 1999 i.e. much before the present prosecution was launched against the accused. In the absence of any cogent material placed on record by the MCD there is nothing on record at all to disbelieve or doubt the documents as above.
28. Apart from JE Vikas Gupta i.e. PW3 the remaining witnesses examined by MCD are formal in nature. Admittedly none of them had ever visited the premises in question and none of them made any efforts to seek clarification from JE as to the material relied upon by him for substantiating the prosecution report. Admittedly none of them bothered to verify the claims of the JE regarding the ownership/occupation of premises by the CC No. 1281/1 MCD Vs. P.C. Chandan 14/15 accused. The Assistant Engineer, the Executive Engineer, the Superintending Engineer and the DC concerned admitted that while forwarding the report and granting sanction for prosecution they did not bother to verify the claims of JE regarding the ownership/occupation by the accused. They did not bother to check the ownership documents of the premises nor made any efforts to even prima facie satisfy themselves regarding the claims of JE. No proof of misuser in the form of report from their department or DDA or Sale Tax or Income Tax Department etc. was sought by them and it seems that they forwarded the report of JE blind foldedly. In fact PW2 K.P. Singh who was the S.E. at that time stated as "I cannot comment whether the accused was never the owner or in possession of the premises in question as I did not visit the same". Simiarly Sh. Manoj Kumar, the then DC and complainant in the present matter who was examined as PW5 stated as "I never visited the site and merely prepared the prosecution report upon the report of the JE as well as AE". All this goes on to show that no mind was applied by any of the above officials while dealing with the report of JE.
29. Hence the MCD/ complainant could neither connect the accused with the premises in question nor it could prove the misuser. Accused is entitled to acquittal.
30. I order accordingly.
Announced in the open (Gaurav Rao)
Court today MM (SD)/Delhi/21.01.2013
CC No. 1281/1 MCD Vs. P.C. Chandan 15/15
CC No. 1281/01 MCD Vs. P.C. Chandan
21.01.2013
Pr: Ld. AMP for MCD.
Accused on bail present today along with his counsel.
Final arguments heard.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
File be consigned to Record Room.
(Gaurav Rao) MM (SD)/Delhi.
21.01.2013
CC No. 1281/1 MCD Vs. P.C. Chandan 16/15