Delhi District Court
State vs . on 1 December, 2012
1
IN THE COURT OF SH. SANJEEV KUMAR METROPOLITAN
MAGISTRATE1 (EAST) KARKARDOOMA COURTS, DELHI
In the matter of:
State
Vs.
Rajesh Aggarwal
FIR NO. 06/1999
P.S. Special Task Force
JUDGMENT
1. Sr. No. of the case : 127/2/99
2. Date of institution : 14.07.1999
3. Name of the complainant : Sh. S. Kumarswamy, IAS
4. Date of commission of offence : In between 30.10.1998 and
01.02.1999
5. Name of accused : Rajesh Aggarwal
S/o Sh.Shiv Dayal,
R/o. H. No. G40,
Laxmi Nagar, Delhi.
6. Offence complained of : Section 345/461A DMC Act &
188/488 IPC
7. Plea of guilt : Accused pleaded not guilty
8. Date of reserving the Judgment : 17.11.2012
9. Final order : Acquitted
10. Date of such Judgment : 01.12.2012
Page no. 1 of 11 St. vs. Rajesh Aggarwal; FIR No. 6/99
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1. The case of the prosecution is that property bearing no. G40, Laxmi Nagar, Delhi, i.e., property in question was booked for unauthorized construction and thereafter, on 30.10.1998, same was sealed by MCD/STF. On 01.02.1999, Jr. Engineer namely P. K, Jain, had found that said seal at both the points have been broken and thereafter, first Information Report (in short 'FIR') No. 6/99 under section 345/461A DMC Act &188/488 IPC was registered at Police Station Special Task Force (STF), Delhi on the complaint of Sh. S. Kumar Swamy, Deputy Commissioner, MCD, South Zone, Shahadara, Delhi. After investigation, chargesheet was filed before this court under section 345/461A Delhi Municipal Corporation Act (DMC Act) & 188/488 Indian Penal Code (IPC) and thereafter, accused was summoned for the said offence.
2. In light of the above stated facts and proceedings, after making compliance of provisions of section 207 Code of Criminal Procedure, 1973 (in short "Cr.P.C") vide order dated 01.03.2001, finding a prima facie case, Sh. A. K. Chaturvedi, framed charge for the offence punishable under section 345/461A DMC Act &188/488 IPC, to which the accused pleaded not guilty and claimed trial.
3. For proving its case, the prosecution has produced five witnesses. Sh. S. Kumarswamy, examined as PW1; ASI Birender Singh Page no. 2 of 11 St. vs. Rajesh Aggarwal; FIR No. 6/99 3 examined as PW2, Sh. P. K. Jain, examined as PW3; Sh. B. S. Suman, examined as PW4 and Inspector Sajjan Singh examined as PW5.
4. Statement of accused was recorded under section 313 (1)(b) of the Cr. P.C. When accused was briefed on all the incriminating evidence and documents, he denied the allegations and mentioned that no such seal was affixed on abovesaid premises. He further submit that he has been falsely implicated in this case after calling him at STF Office and obtaining his signatures on some written papers. However, he opted not to lead evidence in his defence.
5. I have heard the State through Sh. M.A. Khan, Learned Assistant Public Prosecutor and Sh. Anil Kumar Saxena, counsel for accused. Record is also gone through.
6. Learned APP for the State argued that prosecution witnesses have fully supported the prosecution case and therefore, accused may be convicted. Learned defence counsel had contended that earlier notice were given to one Ram Lal and complainant was filed by the Deputy Commissioner before the Police against Ashok Kumar but chargesheet has been filed against the present accused; that no seal was affixed on the property in question; that there are three property in the name of G40, Laxmi Nagar, Delhi, therefore, accused may be Page no. 3 of 11 St. vs. Rajesh Aggarwal; FIR No. 6/99 4 acquitted.
7. PW3 P.K. Jain, Junior Engineer, MCD, Delhi, has deposed that on 30.10.1998, he alongwith STF staff and local police with labour of MCD reached at G40, Laxmi Nagar, Delhi, and the sealing was made at two points at the ground floor of the above said property i.e. at main gate and stair case door and in this regard, document has been marked as Ex. PW3/A. As per this witness, the said premises was sealed as the building plan was deviated from Sanctioned Plan. Hence, as per the case of prosecution, building plan was deviated from Sanctioned Plan and therefore, said property was sealed at two points. Prosecution has not proved the sanctioned plan of the said building to prove the deviation, which were allegedly made in the said building. Without proving the sanction plan of the building, the deviation, if any, in the said building cannot be proved.
8. Sh. B.S. Suman, retired Superintendent, MCD, has been examined by the prosecution as PW4 and he has marked the seizure memo as Ex. PW4/A, copy of first notice as Ex. PW4/B, show cause notice as Ex. PW4/C, second notice for demolition as Ex. PW4/D, Demolition order as Ex. PW4/E, process of demolition of note sheets as Ex. PW4/F and order of DC as Ex. PW4/G. Notice Ex. PW4/B and show cause notice Ex. PW4/C show that same were issued to the owner of the Page no. 4 of 11 St. vs. Rajesh Aggarwal; FIR No. 6/99 5 said building/property in question namely Ram Lal. Further, in demolition order Ex. PW4/E, which was passed against the property in question, the name of owner was mentioned as Ram Lal. Order of Deputy Commissioner Ex. PW4/G shows that the same was issued on 18.9.1998. This order was issued as it was brought to the notice of the Deputy Commissioner that the unauthorized construction/execution of work was completed by and at the instance of one Ashok in the premises bearing No. G40, Laxmi Nagar, Delhi. Deputy Commissioner has been examined by the prosecution as PW1, who has deposed that notice dated 30.6.1998 Ex. PW1/B was issued to owner of the G40, Laxmi Nagar, Delhi. This notice also shows that same was issued to the one Ashok and not to the accused Rajesh Aggarwal. PW1 has also deposed that notice Ex. PW1/B was issued to the owner of G40, Laxmi Nagar, Delhi.
9. As per PW3, he alongwith STF staff and local police with labour of MCD reached at the property in question and same was sealed on 30.10.1998. In this regard PW1 has deposed that property in question was booked for unauthorized construction and on 30.6.1998 and he instructed for issuing show cause notice to the owner/builder of the said property and thereafter, show cause notice dated 16.7.1998 was issued and one person Ashok Kumar came to the office in response to the said notice and he stated that a platform had been raised to avoid water Page no. 5 of 11 St. vs. Rajesh Aggarwal; FIR No. 6/99 6 logging and no new construction had been raised. He has also deposed that show cause notice dated 30.6.1998 was also issued by him and consequent to that, a final sealing order was send by him on 18.9.1998 regarding the said property. He has also deposed that on receiving the information, he filed a complaint with the DCP, which is Ex. PW1/A. This witness has nowhere stated that any notice etc. were issued to the accused Rajesh Aggarwal and accused Rajesh Aggarwal was the owner at the relevant point of time. When this witness (PW1) was cross examined by the Learned Counsel for the accused, then, he has stated that he do not know any person namely Rajesh Aggarwal in reference to this case; that his complaint was against someone Ashok Kumar and not against the accused Rajesh Aggarwal. In his crossexamination, PW1 has accepted the suggestion that in his complaint Ex. PW1/A, name of the accused Rajesh Aggarwal is not mentioned; that before lodging the complaint, he did not enquire about Ram Lal, whose name was mentioned in document Ex. PW4/B, PW4/C and PW4/F; that name of Rajesh Aggarwal is not mentioned in the document Ex. PW3/A. He has also stated in his cross examination that he cannot say whether Rajesh Aggarwal has been falsely implicated or not. Present FIR was registered on the complaint of Deputy Commissioner (PW1) and in said complaint also, name of the accused was mentioned as Ashok and not Rajesh Aggarwal.
Page no. 6 of 11 St. vs. Rajesh Aggarwal; FIR No. 6/99 7
10. PW3 Sh. P.K. Jain, who has deposed that he had sealed the premises, when cross examined by Learned Counsel for accused, then, he has stated that at the time of sealing of premises, he was not aware about the name of landlord/owner/builder of the premises; that no verification was made by him regarding the landlord/owner/builder of the premises; that he cannot say that accused Rajesh Aggarwal was having any concern with the sealed premises or not. Hence, all the relevant witnesses with regard to sealing of the premises, issuing notices and filing complaint with the police i.e. PW1, PW3 and PW4 have not deposed that accused Rajesh Aggarwal was the owner/landlord/occupier of the said premises.
11. Regarding sealing of the said premises, prosecution has examined three witnesses i.e. PW1, PW3 and PW4. Learned Counsel for the accused has submitted that no sealing was made and there are three premises pertaining to the same number G40. PW1 is the Deputy Commissioner, who had passed final order of the sealing. PW4 had brought the documents regarding sealing. PW3 Sh. P.K. Jain was the Junior Engineer, who had sealed the premises as per the case of prosecution. But PW3 when cross examined by Learned Counsel for the accused has stated that no sketch plan was prepared and no measurement was taken by him regarding the sealed premises. PW3 has also stated in his crossexamination that he was not aware about the Page no. 7 of 11 St. vs. Rajesh Aggarwal; FIR No. 6/99 8 fact that there were three premises pertaining to the same number G40. He has also stated in his cross examination that he is not aware about the fact that the premises G40 belongs to someone namely Vijay Goel and another G40 belongs to P.K. Singh or not. He has also deposed in his crossexamination that he cannot say that accused Rajesh Aggarwal was having any concern with the sealed premises or not. Hence, this witness could not tell as to whether the premises, which was sealed by him belongs to Rajesh Aggarwal or Vijay Goel or P.K. Singh. PW4 Sh. B.S. Suman, has also admitted the suggestion of Learned Counsel for the accused in his crossexamination that the documents provided by him through seizure memo Ex. PW4/A are not pertaining to the case of Rajesh Aggarwal and not related to the property of the Rajesh Aggarwal. IO Inspt. Sajjan Singh (PW5) has deposed in his crossexamination that premises was sealed by R.A Goel, Junior Engineer, MCD. PW3 P.K. Jain has also deposed in his crossexamination that R.A Goel, the then Junior Engineer had completed all the proceedings of unauthorized construction and process before the sealing. Said R.A Goel has not been examined by the prosecution.
12. In respect of breaking of the seal of the premises, PW3 P.K. Jain is the only witness, who has been examined by the prosecution. This witness has deposed in this regard that on 1.2.1999, when he visited the said premises as per his routine, he found both the above said Page no. 8 of 11 St. vs. Rajesh Aggarwal; FIR No. 6/99 9 seal tempered and in this regard he gave his report to his higher officers. This witness has nowhere stated in the evidence that Rajesh Aggarwal was the owner at the relevant point of time and said Rajesh Aggarwal had broken the seal in between 30.10.1998 and 1.2.1999. He had also not seen the accused Rajesh Aggarwal breaking the said seal. No other prosecution witnesses has deposed that accused Rajesh Aggarwal had broken the seal of premises.
13. Learned APP for the State has argued that the prosecution has filed the Gift Deed Mark A and General Power of Attorney Mark B to prove that on 14.01.1999, accused Rajesh Aggarwal became the owner of the premises and therefore, he has committed the offence. As per case of prosecution, property was booked on 30.06.1998 and was sealed on 30.10.1998 and on 01.02.1999, it was noticed that said seals were tempered. Prosecution could not tell the exact date when seals were tempered. As property was sealed on 30.10.1998 and therefore, it can be said that same were tempered in between 30.10.1998 and 1.2.1999. As per the said Gift Deed, same was executed by one Shiv Dayal Aggarwal, but said Shiv Dayal Aggarwal has not been examined by the prosecution. Breaking of the said seal cannot be ruled out prior to 14.01.1999 and prior to 14.01.1999, accused Rajesh Aggarwal has not been stated as owner, etc., of the property in the question by the prosecution.
Page no. 9 of 11 St. vs. Rajesh Aggarwal; FIR No. 6/99 10
14. IO Inspt. Sajjan Singh has also not deposed that at the relevant point of time, accused Rajesh Aggarwal was the owner/occupier/builder of the premises and he had broken the seal. When IO was cross examined by the Learned Counsel for the accused and had asked the question as to whether ASI Virender Singh, J.E P.K. Jain and B.S. Suman had disclosed the name of accused in their statement or not regarding the offence, then, he deposed that he did not remember the same. Hence, even IO has not deposed that accused has committed the offence. Prosecution has examined five witnesses but none of them has deposed that accused was the owner/occupier/builder etc. of the premises and he had broken the seal fixed on the said premises. None of the prosecution witness has identified the accused during their respective evidence before this Court.
15. Charge for the offence under section 188 IPC has also been framed against the accused. Under section 195 (1) (a) (i) no court shall take cognizance of an offence punishable under section 172 to 188 (both inclusive) of the IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Hence, public servant whom order was violated by the accused or some other public servant to whom said public servant is administratively subordinate are required under section Page no. 10 of 11 St. vs. Rajesh Aggarwal; FIR No. 6/99 11 195 (1) (a) (i) of the Cr.P.C. to file complaint before the Court for the offence under section 188 IPC but no such complaint was filed.
16. In view of the above discussion, the prosecution has failed to prove its case against the accused beyond reasonable doubt and therefore, accused is acquitted of all the charges. Bail bond stands cancelled. Surety stands discharged. File be consigned to Record Room.
Announced in the open court (Sanjeev Kumar)
st
On 1 Day of December, 2012 Metropolitan Magistrate1 (East)
(total eleven pages) Karkardooma Courts, Delhi
Page no. 11 of 11 St. vs. Rajesh Aggarwal; FIR No. 6/99