Delhi District Court
Sh. Rajiv Brijwasi vs The State (Nct Of Delhi) on 5 February, 2016
IN THE COURT OF SANJAY GARG-I: SPECIAL JUDGE-IV,
(PC ACT) CBI: DELHI.
C.A. No.:- 02/2016
I.D. No. 02401R0005022016
Sh. Rajiv Brijwasi,
S/o Late Sh. Shyam Lal,
R/o D-170, Kamla Market,
Delhi - 110007 ...Appellants
Versus
1. The State (NCT of Delhi)
2. North Delhi Municipal Corporation (NDMC),
Through its Commissioner,
F-1, Civil Centre,
Minto Road, New Delhi ...Respondent
Date of Institution : 05.01.2016
Date of Argument : 02.02.2016
Date of order : 05.02.2016
ORDER
1. Vide this appeal order impugned is dated 09.12.2015 vide which appellant was convicted for the offence punishable u/s 416/417 of DMC Act. Vide. Vide order on quantum dated 10.12.2015 he was sentenced to pay fine of Rs. 1,500/- for the commission of offence u/s 416 of DMC Act and also sentenced to pay fine of Rs. 500/- for the commission of offence u/s 416 of DMC Act.
2. Appellant has not paid the fine and has sought suspension of sentence u/s 389 Cr.P.C. The Ld. Trial Court allowed his application and accordingly he preferred this appeal.
CA No. 02/2016 Page No. 1/83. The brief facts of the case are that appellant was challaned u/s 416/417/430 of DMC Act on 17.07.2014 at 02:30 PM by Challning Officer Sh. Shashi Kumar Sharma (CW-1) with allegations that at premises no. SK-54A, Sindhora Kalan he was found running unit of manufacturing of sweets with two bhattis (furnaces) and with one electric heater which was consuming approximately 2 KW power, without municipal licence. Challan was filed in the court on 26.08.2014. Notice of accusation was given to the accused for commission of offence u/s 416/417/461 of DMC Act on 04.12.2014 to which he pleaded not guilty and claimed trial.
4. Complainant North Delhi Municipal Corporation (NDMC) has examined two witnesses. CW-1 Sh. Shashi Kumar Sharma, Factory Licence Inspector who has prepared the challan Ex. CW-1/A. CW-2 Sh. A.K. Aggarwal is DLO Prosecution has filed challan Ex. CW-1/A in the court. He has proved order no. 721/L/HQ dated 10.09.2012 Ex. CW-2/A vide which he is competent to file complaint in the court.
5. In statement recorded u/s 313 Cr.P.C. accused denied all allegations against him and took the defence that he has been falsely implicated at the instance of one Sh. Naval Kishore with whom he had civil and criminal litigations. Sh. Arvind Garg, Municipal Councilor is cousin brother of Sh. Naval Kishore and at his instance MCD has filed false challan against him. He has categorically stated that premises no. SK-54A, Sindhora Kalan was never in his possession nor he was owner of that property at the time of alleged challan. He opted to lead defence evidence and hence examined Sh. Rajnish Lodhi as DW-1 who has claimed him to be the owner of H.No. SK-54A, Sindhora Kalan.
CA No. 02/2016 Page No. 2/86. Heard arguments of Sh. R.P. Tyagi, Ld. Counsel for appellant and Sh. Umesh Gupta, Ld. Counsel for respondent no. 2. Perused the trial court record and various grounds of appeal raised.
7. It has been stated that Ld. Trial Court went wrong in holding that appellant was occupier of premises no. SK-54A, Sindhora Kalan, Delhi on 17.07.2014 and has wrongly brushed aside the statement of DW-1 Sh. Rajnish Lodhi owner of the above said premises. It has been stated that Ld. Trial Court has failed to appreciate that as per the challan appellant was using 2 KW electricity in the said shop but as per 13 electricity bills filed by DW-1 the maximum demand indicator (MDI) for all the six shops was found to be 1.2 KW. It has been stated that appellant was having licence to run his sweet shop at D-128, Kamla Nagar and on the false complaint of Sh. Naval Kishore with whom appellant has civil and criminal litigation, who lives in the same street where appellant is running his sweet shop, the false challan was filed in the court.
8. On the other hand Ld. Counsel for respondent no. 2 has submitted that the judgement impugned is well reasoned and has considered all the aspects of this case. It has been stated that the Ld. Trial Court has rightly observed that statement of DW-1 is not inspiring confidence. It has been stated that power consumption of 2 KW was mentioned by CW-1 in approximation and on the basis of his guess work. It has been stated that there is no substance in this appeal and the same is liable to be dismissed.
9. CW-1 Sh. Shashi Kumar Sharma has deposed that on 17.07.2014 at about 02:30 PM he visited the premises no. SK-54A, CA No. 02/2016 Page No. 3/8 Sindhora Kalan. In the said premises there were two Halwai Bhattis (Furnace) running and he also saw one electric heater being used by using approximately 2 KW electricity. He also found one mixer being used there. At the said premises he found one person namely Sh. Moti Ram who told that he is Supervisor and owner is Sh. Rajiv Brijwasi. CW-1 told Sh. Moti Ram that one complaint has been filed against the appellant with respect of running this unit for manufacturing of sweets. He prepared challan Ex. CW-1/A and asked Sh. Moti Ram to sign it but he refused to do so. He made endorsement to this effect at point B on the challan. Sh. Moti Ram told him that appellant will be available at his shop at D-128, Kamla Nagar, Delhi. CW-1 reached at the said shop, there appellant met him and he informed him about this challan. He asked the appellant to sign this challan but he also refused. He handed over this challan slip to the appellant and thereafter said challan was filed through DLO in the court.
10. During his cross examination CW-1 stated that he did not find any board on that shop depicting house number or name of the work shop etc. One neighbour told him about address of the shop as SK-54A but he did not tell his name. Even before filing the challan before the court he did not enquire about the ownership of the said premises and name of the registered consumer of the electricity meter. He did not ask any public person to sign the challan when Sh. Moti Ram refused to sign it.
11. DW-1 Sh. Rajnish Lodhi has claimed himself to be the owner of H.No. SK-54A, Sindhora Kalan, Delhi which was purchased by his father Late Sh. Jai Dev Singh. As per him it is a two storey building and CA No. 02/2016 Page No. 4/8 there are six shops and two rooms set for residence on the ground floor. In addition to petitioner there are other tenants in the shops and petitioner has taken two shops on rent on 30.07.2014. Petitioner is using these shops as godown as he is doing catering business.
12. One of the main contention raised by Ld. Counsel for appellant is that Ld. Trial Court went wrong in holding that appellant was the occupier of premises no. SK-54A, Sindhora Kalan, Delhi on 17.07.2014. CW-1 has connected the said premises i.e. SK-54A, Sindhora Kalan, Delhi with appellant on the basis of being told by Sh. Moti Ram who was found present there. As per CW-1 one neighbourer told him about the address of the shop as SK-54A but he did not tell his name to him. The defence taken by appellant as visible from cross examination of CW-1 and in his statement recorded u/s 313 Cr.P.C. is that he had no concern with the said premises. He has nowhere stated if he had taken said two shops of the said premises on rent w.e.f. 30.07.2014 whereas this challan is dated 17.07.2014. From the statement of DW-1 it stands established that premises number as SK-54A is rightly mentioned on the challan and appellant is tenant in the said premises. Whether appellant became tenant w.e.f. 30.07.2014 or he was under tenancy on 17.07.2014 when this challan was done by CW-1, no documentary proof in this regard has been filed on record by DW-1.
13. One of the objection regarding credibility of DW-1 raised by Ld. Counsel for respondent is that DW-1 has specifically told the date of tenancy of appellant but he has failed to give the period since other tenants in the premises were inducted as tenants, which proves that this CA No. 02/2016 Page No. 5/8 witness is making false statement being tutored by the appellant. DW-1 during his cross examination has stated that Ishu was inducted as tenant only two months back but he does not remember the exact date on which he was inducted as tenant. Though a person may remember a particular fact and may not remember other. But DW-1 is remembering the date of tenancy of appellant which took place about one year back from the date of his deposition but not remember the tenant inducted by him just two months back. This certainly create a shadow of doubt on his credibility. Moreover, DW-1 has failed to bring any document on record to establish that appellant was inducted as tenant w.e.f. 30.07.2014 and was not his tenant on 17.07.2014 when this challan was done.
14. Other contention raised by Ld. Counsel for appellant is that as per CW-1 property no. SK-54A is single storey and there was only one shop having two shutters at the ground floor but as per DW-1 it is a two storey building and there are six shops and two rooms set for residence at the ground floor. DW-1 has given the names of other tenants in the said property but he has not produced any documentary proof firstly regarding the existence of six shops and two rooms set for residence at the ground floor and secondly, agreement of tenancy with these mentioned tenants in his statement. In view of this uncorroborated statement of DW-1, the testimony of CW-1 the Challaning Officer cannot be disbelieved.
15. Other contention raised by Ld. Counsel for the appellant is that as per CW-1 electric heater at the premises was using approximately 2 KW electricity but as per the electricity bills Ex. DW-1/A CA No. 02/2016 Page No. 6/8 (Colly) filed by DW-1 MDI reading for the entire premises was only 1.20 KW. Ex. DW-1/A (Colly) are the various electricity bills of the said premises from March, 2014 till August, 2015. As per these bills MDI reading, which as per Ld. Counsel for appellant denotes maximum demand indicator is mentioned as 1.20 KW. It is relevant to mention her that CW-1 has given the load of 2 KW of the electric heater just in approximation and on the basis of his guess work. What was the exact watt of electric heater being used at the premises was not possible for CW-1 to ascertain. Therefore, I do not agree with the contention raised by Ld. Counsel for appellant that on account of mere mentioning of 2 KW on the challan, the entire statement of CW-1 comes under shadow of doubt.
16. CW-1 has admitted that he had visited the said premises on the basis of complaint made by one Sh. Naval Kishore. Merely because appellant had civil and criminal litigation pending with the complainant Sh. Naval Kishore and the sitting Municipal Councilor of the area is cousin brother of the complainant, from this it cannot be presumed that appellant was challaned wrongly. As already discussed it stands established from the statement of DW-1 the landlord of premises no. SK-54A, Sindhora Kalan that appellant was his tenant in two shops. The statement of DW-1 that appellant was inducted as tenant w.e.f. 30.07.2014 is not inspiring confidence and was rightly disbelieved by the Ld. Trial Court.
17. Statement of CW-1 is found consistent. Ld. Counsel for appellant has failed to point out any contradiction in his testimony which may have shattered his credibility. CW-1 has specifically stated that CA No. 02/2016 Page No. 7/8 appellant was found running unit of manufacturing sweets at premises no. SK-54-A, Sindhora Kalan, Delhi with two bhattis (furnace) and one electric heater without municipal licence. I find no reason to disbelieve his testimony.
18. In view of the aforesaid reasons, the various grounds in this appeal are found without merit. The appeal is accordingly dismissed. Appellant is directed to deposit the fine imposed vide impugned order before the Ld. Trial Court.
19. Copy of this order with TCR be sent to Ld. Trial Court. Appellant is directed to appear before the Ld. Trial Court on 09.02.2016 for compliance of the order of quantum on sentence. Copy of order be provided to the appellant.
20. The file of the appeal be consigned to record room.
Announced in open court on 5th February, 2016 (SANJAY GARG-I) SPECIAL JUDGE-IV, CBI (PC Act) TIS HAZARI COURTS,DELHI CA No. 02/2016 Page No. 8/8