Delhi District Court
Bank Of India vs State on 27 February, 2012
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IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 67/08
Bank OF INDIA,
A body corporate constituted under
The Banking Companies (Acquisition
& Transfer of Undertakings) Act 5 of
1970 having its Head Office at
Star House, C-5, G-Block, Bandra
Kurla Complex, Bandra (East),
Mumbai-400051 and Branch Office
amongst other places at A-25,
Chittaranjan Park, New Delhi-110019 ... Appellant
versus
1 State
2 DELHI DEVELOPMENT AUTHORITY,
Through its Vice Chairman/Secretary,
Vikas Sadan, I. N. A.,
New Delhi. ... Respondents
Date of institution of the appeal : 28.06.2004
Date of reserving judgment/order : 01.02.2012
Date of judgment / order : 27.02.2012
JUDGMENT :
This is an appeal against the judgment dated 13.05.2004 vide which the appellant has been convicted u/s 14 read with Section 29(2) of Delhi Development Act (hereinafter referred to as the "DD Act") and order on sentence dated 27.05.2004 vide which a fine of Rs.100/- per day for 240 days amounting to Rs.24,000/- had been imposed on the appellant.
CA No. 67/08 Page No. 1 of 10 -2-The facts in brief are that the appellant had been convicted by the Court of Sh. A. S. Yadav, the then Ld. MM, u/s 29 (2) of the Delhi Development Act for using premises no. A-25, Chittaranjan Park, New Delhi, in contravention of the provisions of Master Plan of Delhi and was sentenced to pay a fine of Rs.1,000/-. However, again on inspection the Junior Engineer of DDA vide his report dated 02.06.1984 had reported that the appellant had not stopped the misuse even after the orders of the Court and the same has been continued upto the date of inspection dated 02.06.1984. Hence, the present complaint was filed.
The accused Bank along with the Chairman, Sh. R. K. Tiwari were summoned but Sh. R. K. Tiwari died during the pendency of the proceedings and the proceedings against him were dropped.
Notice u/s 251 Cr.PC served on 12.08.1987 on the Bank through its representative Sh. Inderjeet Singh Dhillon, to which he pleaded not guilty.
Three witnesses were examined by the prosecution. The appellant had examined two witnesses.
The Ld. Trial Court after considering the evidence, concluded that the Bank was guilty for the offence u/s 14 r/w Section 29 (2) of DD Act and accordingly sentenced the Bank to pay a fine of Rs.24,000/-.
Aggrieved by the said conviction and sentence, present appeal has been filed.
Ld. Counsel on behalf of the appellant in its CA No. 67/08 Page No. 2 of 10 -3- grounds for appeal has stated that the full facts of the case were not placed before the sanctioning authority. The sanction has been obtained on a cyclostyle proforma, which shows that there has been a complete non-application of mind of the concerned officer and such sanction cannot be considered to be valid. Furthermore, the Zonal Plan has not been proved by PW1 and the prosecution witness PW1 J. K. Beniwal has not been able to show the dimensions on Zonal Plan Ex.PW1/C and has even admitted in his cross-examination that Chittaranjan Park has not shown in the Zonal Plan. Furthermore, it is admitted by PW1 that there was a cinema hall at a distance of about one furlong from the suit premises and there was a market about 100 yards from the suit premises. Also, Punjab National Bank was functioning in the neighbourhood. All these admissions show that commercial activity was being carried out in the adjoining properties and the respondent had not been able to prove the use of premises by the appellant was in contravention of the Master Plan and the Zonal Plan. Therefore, the conviction cannot be sustained.
Moreover, the similar prosecution had been launched against the owner Sh. R. C. Chaturvedi, but he had been acquitted by the Ld. MM, Sh. R. C. Chopra, vide judgment dated 19.02.1977. The owner was again prosecuted and was convicted by the then Ld. MM, Sh. A. S. Yadav vide his judgment dated 04.10.1983 but the said judgment was set aside in appeal by the Ld. Sessions Judge vide judgment dated 20.03.1985. The appeal filed by the DDA against the said CA No. 67/08 Page No. 3 of 10 -4- order was also dismissed by the Hon'ble High Court. It is, therefore, argued that when in respect of the same premises the owner has been acquitted as it was not proved that the premises were being used in contravention of the Zonal Plan, then for the same premises the tenant/applicant Bank of India cannot be convicted. It is further submitted that the respondent has failed to place on record the certified copy of the previous conviction against the appeal despite having been given the innumerable opportunities, in the absence of which the present conviction cannot be sustained. It is, therefore, submitted that the impugned judgment and order dated 13.05.2004 and 27.05.2004 are liable to be set aside.
Ld. Counsel on behalf of the DDA has argued that the Zonal Plan has been duly proved to show that the premises were being used by the appellant for running a Bank, which is in contravention of the Zonal Plan. Furthermore, it is admitted that the Bank has already been convicted for this offence vide judgment dated 06.10.1983 against which no appeal was filed by the Bank. For the continuing offence, the only thing which had to be proved by the Department was the continuing misuse of the premises by the appellant which is not only proved, but also not disputed by the appellant. There is no ground for setting aside the impugned judgment and the Bank has been rightly convicted.
I have heard the arguments and have perused the entire record.
My observations are as under :
CA No. 67/08 Page No. 4 of 10 -5-The first objection, which has been taken on behalf of the appellants is that the sanction has been obtained from the competent authority on a cyclostyled proforma which shows that there was complete non-application of mind and such sanction cannot be held to be valid.
Section 49 of the Act states that no prosecution shall be instituted except with the previous sanction of the Authority or by an officer authorized by the Authority. In the case of "Indian Bank v. DDA, 155 DLT (1979) 209", this aspect of grant of sanction was considered by Hon'ble High Court of Delhi and it was observed that the question of sanction can only arise if the prosecution is launched by another person and not by the Authority itself. There is no question of the Authority giving itself sanction to prosecute. In a case where DDA itself files the complaint under the signatures of Secretary, who has been duly authorized by the Department, which can only act through some person as it is a corporate body, then no sanction is required u/s 49 of the Act. The simple reason is that when the DDA itself is instituting the proceedings it gave itself sanction by authorizing the Secretary to institute the proceedings. In the present case the complaint Ex.PW1/B has been signed by Sardar Amarjeet Singh, who was the then Addl. Secretary of DDA and had signed at point A. PW2 Kuldeep Singh, Clerk from DDA had proved the Resolution No. 137, dated 15.07.1978 duly signed by Sh. D. R. Kohli and Sh. Krishan Pratap, the then Chairman and Secretary of DDA had proved the Resolution No. 137, dated CA No. 67/08 Page No. 5 of 10 -6- 15.07.1978, certified copy of which is Ex.PW2/A. Vide this resolution, the Additional Secretary, Prosecution, had been empowered to grant the sanction for prosecution.
The other aspect of the grant of sanction was the use of cyclostyle proformas, the details being filled in by the concerned officer. Again, this point was considered by the Hon'ble High Court of Delhi in the case of "Oriental Bank of Commerce v. DDA, 1983 (4) DRJ 253". It was noted in regard to cyclostyle sanctions that mere use of cyclostyle proforma does not disclose that the sanctioning authority did not apply its mind. It is in fact only after considering the record that the details of dates and other relevant data is filled in the said proforma. It was in fact appreciated that carefully worded particulars of sanctions, complaints and summoning orders were prepared in advance so that no loop holes could later be found in the wordings of the sanction and the summoning orders. It also saves a lot of precious time in writing and typing each time in the case. It was, thus, concluded that merely because a cyclostyle proforma was used, sanction would not become illegal.
The respondent has, therefore, validly proved the sanction for prosecution and this cannot be a ground to reverse the impugned judgment.
The main argument of the appellant was that the Zonal Plan has not been proved as PW1 has admitted that Chittaranjan Park is not indicated on the Zonal Plan and that he had indicated the premises in question on the basis of CA No. 67/08 Page No. 6 of 10 -7- measurement. It was argued that the Department has not been able to show that the use of premises for running a Bank was in contravention of Zonal Plan and thus, the conviction of the Bank cannot be sustained.
The Department in order to prove that a Bank was being run by the appellant in a residential area in contravention of the Zonal Plan had examined PW1 Sh. J. K. Beniwal, who had proved the Zonal Plan Ex.PW1/C and had located the suit premises at Point X. He had also clarified that the said premises fall in Zone F.9 and could be used only for residential purposes.
The Ld. Counsel on behalf of the appellant had tried to argue that Chittaranjan Park was not specifically indicated in the Zonal Plan but that is immaterial in view of the categorical deposition of PW1 that the suit premises had been located on the basis of the measurement. The appellant has admitted that it has been running a Bank in the said house. The prosecution had been able to establish that the Bank had been running in a residential area. The appellant has not been able to show that such user of residential premises for running a Bank was exempted or was permitted under the Zonal Plan.
The appellant had relied upon the letter issued by the Lt. Governor dated 24.02.1998 to say that now even the Government has permitted the Banks to be run in residential area. First and foremost, the said office letter is dated 24.02.1998 that is much after the complaint in the present case had been filed and the said order is, therefore, of no CA No. 67/08 Page No. 7 of 10 -8- assistance to the appellant. Furthermore, the officer order merely states that since only I5O out of 1134 total branches of Bank are not operational in residential complexes and are boon to old, the aged and the pensioners and there is no complaint from RWAs who welcome this facility, they should be allowed to remain there. This does not imply that the prosecutions already pending would stand withdrawn.
The next point which had been raised on behalf of the Bank is that for the same premises the owner Sh. R. C. Chaturvedi had been prosecuted under the DDA but he has been acquitted not once but twice. It has been submitted that once the owner has been acquitted for the misuse of the premises, the Bank/tenant cannot be convicted on the same ground.
The perusal of the judgment dated 19.02.1977, Ex.DX passed by Mr. R. C. Chopra, the then MM, shows that the acquittal was on the ground of non-production of sufficient evidence. Likewise, the Ld. ASJ had set aside the conviction of the owner Sh. R. C. Chaturvedi vide judgment dated 19.02.1977 on the ground of double jeopardy u/s 300 Cr.PC. It was observed that once the owner had been acquitted for an offence, he cannot be tried again from the same offence. The said judgments relied upon by the appellant were between the owner and the DDA, to which the present appellant was not a party and the observations made vis a vis the owner cannot be held finding in favour of the appellant. Moreover, it is pertinent to note that it was on the ground of insufficient evidence that CA No. 67/08 Page No. 8 of 10 -9- the benefit had been extended to the landlord. There was no conclusion / finding given that in fact the use of residential premises for Banking was permitted under the Master Plan or the Zonal Plan. Thus, the finding in the judgments relating to the owner of the premises cannot operate as an "issue estopple" in the present case. The said judgments, therefore, are of no reliance to the appellant.
It has been rightly argued on behalf of the DDA that for this second offence all that was required to be proved was that there was a previous conviction or misuse of premises and the same has continued even on the date of inspection. In the present case, a notice u/s 251 Cr.PC was given to the appellant wherein it was clearly stated that they have been earlier convicted vide judgment dated 06.10.1983 and it was found to be continuing misuse of the premises despite first conviction. PW1 Mr. Beniwal had also deposed that the appellant had been earlier convicted under the DDA Act. There was no cross-examination whatsoever of PW1 on this aspect. The specific question was put to the appellant in the statement u/s 313 Cr.PC that the Bank had been earlier convicted on 06.10.1983 by Sh. A. S. Yadav, the then MM for misusing the property in question, which was admitted by the officer on behalf of the appellant.
In the case of "DDA v. R. K. Gupta, IV (1995) CCR 425 DB, Delhi High Court", it was observed that the evidence of the prosecution coupled with the admission of the respondents in his statement u/s 313 Cr.PC is sufficient to base CA No. 67/08 Page No. 9 of 10
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the conviction u/s 14 read with Section 29(2) of DD Act.
In the present case as well, PW1 has deposed about the previous conviction of the appellant for mis-use of premises and this fact had been admitted on behalf of the Bank in the statement recorded u/s 313 Cr.PC. Mere, non- production of certified copy of the judgment dated 06.10.1983 would not disprove the earlier conviction, which is admitted even by the Bank. The non-production of certified copy of the earlier conviction is, therefore, not fatal for approving the conviction.
From the above discussion, it can be safely concluded that appellant had not been able to establish any ground for setting aside the impugned judgment. The appeal is hereby dismissed.
Trial Court Record be sent back along with the copy of this order.
Appeal file be consigned to the Record Room. Announced in the open Court on 27th Day of February,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 67/08 Page No. 10 of 10