Delhi District Court
State vs . Surender Gupta on 11 December, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 335/2010
P.S. Malviya Nagar
U/s 461/345A/465 DMC Act
State vs. Surender Gupta
JUDGMENT :
a. Sl. No. of the case : 90/12
b. Date of Institution : 10.12.2010
c. Date of Commission of Offence : 26.07.2010
d. Name of the complainant : Sh. S.K. Midha
Deputy Commissioner,MCD,
South Zone, New Delhi.
e. Name of the accused and his : Surender Gupta
parentage and address S/o Deep Chand
R/o 5A/1, Toot Sarai,
Malviya Nagar, New Delhi
f. Offence complained of : U/s 461/345A/465 DMC Act
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 11.12.2013
i. Final Order : Acquitted
j. Date of such order : 11.12.2013
1. The accused in this case was sent up for trial for the commission of FIR NO. 335/2010 PAGE 1 OF PAGE 6 PS MALVIYA NAGAR offence U/s 461/345A/465 DMC Act.
2. The facts in brief are that on 26.07.2010, at property no. 5A/1, Toot Sarai, Malviya Nagar, New Delhi, accused had tampered with the seal affixed by the MCD 16.06.2010 by the staff of building department, MCD. On the complaint of complainant, FIR was lodged. During the investigation, statements of witnesses were recorded. Accused was arrested and after completing other formal investigation the challan was presented before the court for trial U/s 461/345A/465 DMC Act against the accused.
3. Accused had appeared in the court and he was informed about the substance of allegations against him and notice was served upon him vide order dated 05.06.2013, U/s 461/345A/465 DMC Act to which he pleaded not guilty and claimed trial.
4. To prove its case the prosecution has examined three witnesses namely S.K. Midha as PW1, Ravi Kumar Meena as PW2 and Ct. Jai Kumar as PW3.
5. PW1 S.K. Midha has testified that in the month of July, 2010, a case of seal tampering was reported to him in respect of property bearing no. A5/1, Toot Sarai, Malviya Nagar. He issued sealing orders for the said property in the month of June, 2010 which is Mark X. On reporting of tampering of seal, he issued the orders for prosecution in FIR NO. 335/2010 PAGE 2 OF PAGE 6 PS MALVIYA NAGAR the month of September, 2010 to DCP. His complaint to this effect is Ex. PW1/A. In his cross examination, PW1 has testified that he did not remember the dates when the sealing order was issued. PW1 further testified that the said property was not sealed in his presence. PW1 further testified that he had not seen any photography or videography o f the alleged unauthorized construction. PW1 further testified that his statement was never recorded by the police.
6. PW2 Ravi Kumar Meena has testified that in the year 2010, he sealed the property bearing no. 5A/1, Toot Sarai, Malviya Nagar, New Delhi. He got sent the watch and ward letter to PS Malviya Nagar . He accompanied the IO to the spot i.e. The said property and IO prepared the site plan.
Accused did not prefer to cross examine PW2.
7. PW3 Ct. Jai Kumar has testified that on 26.08.2010, he had joined the investigation of the present case FIR with IO/SI Parvesh Lamba and he along with IO proceeded for search of accused. During investigation, accused present in the court was arrested vide memo Ex. PW3/A. Accused did not prefer to cross examine PW3.
8. After closing of prosecution evidence, statements of accused was recorded U/s 281 r/w section 313 Cr.P.C. In his statement, accused has denied to have committed the offence and claimed to have been falsely FIR NO. 335/2010 PAGE 3 OF PAGE 6 PS MALVIYA NAGAR implicated in this case. However, he did not lead any evidence in his defence.
9. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused.
10. U/s 345A of DMC Act, the Commissioner of MCD has power to make an order for sealing of any work of unauthorized construction and sub section 3 thereof makes the removal of such seal without the permission of the Commissioner punishable. To prove such an offence, there must be evidence to show that a seal was affixed by the authorized officer of the MCD which was broken or tampered with by the accused in contravention of the provision of section 345 A of DMC Act.
11. In the present case, the prosecution has not led any evidence in the first place to establish that the property was ever sealed. No record in this connection has been brought on record. Infact, no such record was secured by the IO during the investigation. Oral evidence in this behalf is also not sufficient. The JE has been examined as PW2 but he has not supported the prosecution case. He has not stated the date as to when he sealed the said property. He has further failed to disclose the date when the seal on the property was found broken. Apart from any documentary evidence, no photographs of the sealed property have been placed on record.
FIR NO. 335/2010 PAGE 4 OF PAGE 6 PS MALVIYA NAGAR
12. Moreover, the prosecution has relied upon the documents showing the ownership of the accused in the property but these documents have not been proved by producing any proper witness. In any case, being owner of the property is no offence and what the prosecution was required to prove, was that the accused has broken or tampered with the seal. In this respect, no eye witness has been examined by the prosecution. Being owner of the property, does not raise any presumption against accused for having committing the offence. Even the complaint of the concerned official or the FIR does not disclose as to who had removed the seal. In such circumstances, it cannot be said that it was the accused who had removed the seal and committed the offence.
13. Again under section 345A of DMC Act, a duty has been cast upon the MCD to serve proper notice upon the owner or occupier before putting any seal upon the property. In the present case, no such notice seems to have been served upon the accused. Issuing of such notice is a prerequisite for sealing a property and production of such notice in original in the court is essential being a material evidence.
14. All these infirmities in the prosecution evidence seriously reflects on the varacity of prosecution case the benefit whereof must go to the accused.
15. In the result, I find that Prosecution has failed to prove its case against FIR NO. 335/2010 PAGE 5 OF PAGE 6 PS MALVIYA NAGAR the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Surender Gupta is acquitted for the offence punishable U/s 461/345A/465 DMC Act.
Announced in the Open Court (DEEPAK SHERAWAT)
On 11.12.2013 Metropolitan Magistrate
South East District/New Delhi
FIR NO. 335/2010 PAGE 6 OF PAGE 6
PS MALVIYA NAGAR
FIR No.335/2010
PS Malviya Nagar
U/s 461/345A/465 DMC Act
11.12.2013
Present: Ld. APP for the State.
Accused on bail with counsel.
Final arguments heard.
Vide my separate judgment dictated and announced in the open court, accused is acquitted for the offence punishable U/s 461/345A/465 DMC Act.
Accused is released on bail on furnishing personal bond in the sum of Rs.10,000/ with one surety in the like amount. Bail bond furnished. Same is accepted. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused shall remain bound by the personal as well as surety for a period of six months from today.
Documents, if any, be released to accused as well as surety after cancellation of endorsement on the same.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East/11.12.2013
FIR NO. 335/2010 PAGE 7 OF PAGE 6
PS MALVIYA NAGAR