Delhi District Court
State vs Aditya Madan on 21 September, 2023
IN THE COURT OF SH VAIBHAV KUMAR,
METROPOLITAN MAGISTRATE-05, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
JUDGMENT
STATE VS Aditya Madan FIR NO:137/2013
PS Barakhamba Road U/s 4A DPT & MAT
Act 2010
A The Sl. No. of the case : 49587/2016
b The date of commission : 04.10.2013
c The date of Institution of the : 25.11.2013 case d The name of complainant : ASI Rakesh Kumar, No.1567/ND, PS Barakhamba Road, New Delhi.
e The name of accused persons : (1) Aditya Madan S/o Sh. Naveen and their parentages Madan R/o 1723, 3rd floor, Pratap Street Chhunna Mandi, Paharganj, New Delhi.
(2) Aviral Kapoor S/o Sh. Ashok Kumar Kapoor R/o 1764, Pratap Street, Chunna Mandi Paharganj, New Delhi (already convicted by way of plea-bargaining vide order dated 19.02.2014) f The offence complained of : U/s 4A DPT & MAT Act 2010.
g The plea of both accused : Not guilty
h Orders reserved on : 16.09.2023
i The final order : Acquitted
j The date of judgment : 21.09.2023
State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 1 of 19
Argued by:- Sh. Sukhjeet Singh, Ld. APP for the State.
Sh. Rohit Krishan Nagpal with Sh. Dipanshu Gaba, Ld. Counsels for accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION:-
FACTUAL MATRIX-
1. It is the case of the prosecution that on 04.10.2013 at about 2:00 PM, at front of Anand hotel, Janpath Lane, Scindia House, New Delhi within the jurisdiction of PS Barakhamba Road, accused Aditya Madan S/o Sh. Naveen Madan, the accused person were found committing act of touting and malpractices against foreign tourist by offering them cheap hotels and a packages for traveling on which the tourist refused and thereby committed offence under Section 4 A of The Delhi Prevention of Touting and Malpractices against Tourists Ordinance 2010. An FIR No.137/2013 was registered at PS Barakhamba Road pertaining to the incident. After completion of investigation, the present charge sheet was filed in the Court.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigation Officer (hereinafter referred to as the "IO") undertook investigation and on culmination of the same, the chargesheet was filed against the aforementioned accused person. After taking State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 2 of 19 cognizance of the offence, the accused persons namely Aditya Madan and Aviral Kapoor were summoned to face trial vide order dated 25.11.2013 by the Ld. Predecessor of this court.
3. On appearance of the accused, a copy of chargesheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "CrPC"). Prima facie offence was made out against both the accused persons namely Aditya Madan S/o Sh. Naveen Madan and accused Aviral Kapoor S/o Sh. Ashok Kumar Kapoor for offence punishable under Section 4A of The Delhi Prevention of Touting and Malpractices against Tourists Ordinance 2010. However, accused Aviral Kapoor pleaded guilty vide plea-bargaining dated 19.02.2014 and was admonished accordingly. Notice under section 4A of The Delhi Prevention of Touting and Malpractices against Tourists Ordinance 2010 was served upon the accused Aditya Madan, to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:
State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 3 of 19ORAL EVIDENCE PW-1 ASI Sunita PW-2 ASI Manmohan PW-3 ASI Dalchand PW-4 ASI Satya Narayan PW5 Arun Kumar PW6 ASI Rakesh Kumar DOCUMENTARY EVIDENCE Ex.PW1/A Copy of FIR Ex.PW2/A Rukka Ex.PW2/B Arrest memo of Aditya Ex.PW2/C Arrest Memo of Aviral Ex.PW2/D Search memo of Aditya Ex.PW2/E Search memo of Aviral Ex.PW6/1 Tehrir Ex.PW6/2 Site plan
5. PW1 ASI Sunita deposed that on 04.10.2013 she was working as Duty Officer at PS Barakhamba Road from 8:00 AM to 4:00 PM. She has stated that Ct. Satya Narayan brought one rukka upon which she registered the present FIR and handed over a copy to Ct. Satya Narayan.
State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 4 of 196. PW2 / ASI Manmohan, who deposed that on 04.10.2013, he was posted as Head Constable at PS Barakhamba Road and was on duty along with Head Constable Lal Chand and Ct. Satya Prakash. He has stated that during his beat patrolling duty at about 2:00 PM, they had reached Anand Restaurant, Scindia House where they met public persons. In the meanwhile, ASI Rakesh also reached at the spot along with ERV staff and they got to know that after inquiry that Aditya Madan and Aviral Kapoor told the foreigners that they will manage cheap hotels, taxi and cheap shopping for them for which the foreigners denied and then Aditya Madan and Aviral Kapoor stopped the way of the foreigners. He also deposed that ASI Rakesh told the accused persons not to disturb the said foreigners in any manner but the accused persons denied, therefore, ASI Rakesh prepared rukka and handed it over to Ct. Satya Narayan to get the FIR registered and came back to the spot. Thereafter, the accused persons were searched and arrested and were released on police bail. The witness has correctly identified the accused Aditya Madan in the Court. The witness has been cross examined by Ld. Defence counsel for accused. In his cross examination, witness has deposed that there were four foreigners but he could not tell their nationality. He further stated that they were speaking in English language and there were two males and two female foreign tourists. He has also stated that 20-25 people were also present at the spot. However, he did not State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 5 of 19 know anybody except the police persons. He has also stated that the accused persons did not try to flee from the spot. He also deposed that Arun Malhotra who is friend of the owner of Anand Restaurant was known to him and one of the owner of Anand Restaurant is Jitender. He also deposed that the incident took place at Scindia house but he could not remember whether any IDs / passport of so called foreign tourists were checked.
7. PW3 ASI Dalchand, who deposed that on 04.10.2013 he was on patrolling duty along with HC Manmohan and Ct. Satya Narayan and at about 2:00 PM, crowd gathered in front of Anand Dhaba where accused persons namely Aditya Anand and Aviral Kapoor were trying to take foreigners forcibly for dropping them to hotels and taxi. He further deposed that he saw that the said foreigners were denying for the same. In the meantime, ASI Rakesh reached at the spot and conducted inquiry. He has further deposed that accused told ASI Rakesh that they are helping the foreigners in shopping. Thereafter, ASI requested the foreigners to give statements but they denied and left the spot. Thereafter, one person namely Arun Kumar came forward and gave his statement regarding the incident upon which rukka was prepared and FIR was registered. Accused has been correctly identified by the witness who was present in the Court. The witness has been cross examined by Ld. Counsel for accused. In his cross State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 6 of 19 examination, PW3 has stated that there is CCTV Camera installed over CCD and PNB Bank, however, that is not exactly at the spot. He also stated that the foreigners were speaking in English language and he could not tell as to which country they belonged. He has also stated that the identity of the foreigners was not asked by anybody, however, the foreigners told about the incident to one public person namely Arun Kumar. He has also stated that 15-20 persons were also present there. He has further stated that no injury was inflict upon the said foreigners by anyone and their clothes were intact. He further stated that public persons present on the spot were carrying mobile phones.
8. PW4 ASI Satya Narayan has deposed that on 04.10.2013, he alongwith HC Manmohan and HC Dalchand reached the spot i.e. opposite Anand Restaurant where they saw two persons involved in touting as they were talking with four foreign tourists by saying that they will manage cheap hotel and taxi for them to which the foreigners were denying. He has also deposed that ASI Rakesh asked the accused persons to not to disturb the foreigners but the accused did not listen to him. Thereafter, he has stated that an FIR was registered upon the accused persons. He has correctly identified accused Aditya Madan in the Court. During his cross examination, he has stated that there were two male foreign tourists, however, their nationality and other whereabouts were not State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 7 of 19 known. He has also stated that no PCR call was made pertaining to the incident.
9. PW5 Arun Kumar, has deposed that he was running an office at 103, Scindia House, Delhi for the purpose of business of tour and travels. On 04.10.2023, at about 2:00 PM, when he was standing outside his office, he saw four foreigners comprising of two female and two male who were stopped by two boys near Anand Restaurant. The said boys told the foreigners that they will arrange cheap hotel and cheap transport for them but the foreigners denied. He has deposed that in the meanwhile police official reached the spot and they were apprehended by them upon which they revealed their names as Aditya Madan and Aviral Kapoor. The witness has correctly identified the accused. During his cross examination, he has stated that he can understand English, however, he could not understand the language in which the foreigner tourists were conversing. He has stated that he was not aware about the language in which they were talking and he could not tell about the conversation which was happening between the accused persons and the foreigners. He also stated that he was not aware if any complaint was made by the foreigners to the police. He has further stated that he could not tell if the said tourists were being harassed by the accused as he was standing at a distance.
State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 8 of 1910. PW6 SI Rakesh Kumar has deposed that on 04.10.2013, he was on emergency duty from 8:00 AM to 8:00 PM on ERV vehicle. During patrolling, at about 2:00 PM, he reached Anand Restaurant where he found crowd and three police officials of PS Barakhambad road whose name were HC Dalchand, HC Manmohan and Ct. Satya Narayan. He has stated that 3-4 foreign tourists were present and the beat staff informed him that two boys were committing touting with the tourists upon which he made inquiry and found one public person namely Arun Kumar who confirmed the incident. Thereafter, he stated that a request was made to the foreign tourists to give a complaint, however, they denied and left the spot. Thereafter, he deposed about the procedure of registration of FIR and arrest of the accused. He has correctly identified the accused in the Court. During his cross examination, he has stated that there was one female and two male tourists who were speaking in English and they left the spot without disclosing their names and address. He could not remember if any letter was received by him which was written by the said tourists stating that the accused has been falsely implicated and rather the accused persons were trying to help the said foreigners. He has also stated that he did not find anything related to touting upon the personal search upon the accused. He has also stated that he cannot understand English language.
State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 9 of 19STATEMENT OF THE ACCUSED AND DEFENCE EVIDENCE
11. Thereafter, before the start of defence evidence in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded on 18.08.2022 without oath under section 313 CrPC, wherein he stated that he is innocent and has falsely been implicated in the present case. He has also stated that the said foreign nationals were duped by a travel agent charging exorbitant price for a trip to Rajasthan and he was only trying to help the tourists to get a refund. He has also stated that he is an engineer and has represented India at the International Scouts Peace Camp at Indonesia and knows basic French language that is why he was able to understand the agony of the said tourists and so he decided to help them being a responsible citizen. Pursuant thereto, he stated that he wishes to lead defence evidence.
DOCUMENTARY EVIDENCE BY DEFENCE PW1/D1 Letter by foreign tourists
12. Accused Aditya Madan testified in court as DW1 whereby he stated that on 03.10.2013, he was working as a Casting Assistant at the set of shooting of movie PK where he met State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 10 of 19 four French tourists who told him that they were duped by a travel agent situated at Scindia house. They requested him to accompany them to the office of the travel agent to help them seek refund of their amount. He has stated that he knew basic French language and the foreigners could not speak English proficiently, therefore, he could understand their agony and agreed to help them. He has deposed that in the morning of 04.10.2013, he and his friend Aviral along with French tourists went to the office of the travel agent where they requested for refund, however, they denied. Inn the meanwhile, one Bilal made a call to the police and HC Manmohan and other police officials arrived at the spot and started misbehaving with him and his friend Aviral. He has stated that the police officials and the travel agent did not listen even to the requests of the French tourists. He has further deposed that the French tourists also wrote a letter to the IO stating that he and his friend were trying to help the French tourists and an email was also written to the Police Commissioner regarding the same still he has been falsely implicated. During his cross examination, he has deposed that at the time of incident, he was an engineering student and when the foreign tourists asked him for help, he did not go to the PS as he thought that the agent would return the money if requested. He has also stated that the tourists were charged Rs.1.5 lakhs by the travel agent Arun Kumar for a trip to Rajasthan. He has denied the suggestion of being a tout.
State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 11 of 19ARGUMENTS
13. I have heard the Ld. APP for the State and Ld. LAC for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
14. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
15. Per contra, the Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It has been argued that there are various discrepancies in the testimonies of the witnesses and even the said French tourists have themselves written a letter to the IO stating that the accused has been falsely implicated rather he was trying to help them. It is argued that the prosecution has failed to discharge the burden cast upon it. As State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 12 of 19 such, it is prayed that the accused be acquitted for the said offence as he has been falsely implicated by the police in connivance with the travel agent.
INGREDIENTS OF THE OFFENCE
16. The provision of Section 4(a) of The Delhi Prevention of Touting and Malpractices Act, 2010 (hereinafter referred as "the Act" "DPTM Act") prescribes punishment for touting or commit any malpractice. It reads as -:
"Section 4 Penalties - Any person who,
(a) touts or commits malpractice shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;"
17. The term touting has been defined in section 2 clause (f) of the Act, according to it, "touting includes enticing, misguiding or coercing for shopping, accommodation, transportation, sight-seeing or pestering for any particular premises, including the precincts thereof, any person, establishment, dealer or manufacturer for personal consideration." Therefore, if anyone tries to entice a tourist on the pretext of providing a cheap hotel or taxi as in the present case, with the intention of offering unsolicited service to the tourists or pesters or coerces such tourist to use such State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 13 of 19 service and exhibits such conduct so as to manifest such intention will be deemed to have committed the act of touting if he has otherwise no reasonable explanation for the said act.
APPRECIATION OF EVIDENCE
18. In order to prove the case of the prosecution for committing the offence of touting by the accused Aditya Madan punishable under section 4 (a) of the DPTM Act, all the ingredients of the said offence have to be proved. Before appreciating the evidence, brought on record by the prosecution, a reference be made to the law of appreciating evidence of the witnesses. The Hon'ble Delhi High Court in case titled as Satish Bombaiya vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 14 of 19 render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
19. In order to prove its case, the prosecution has to establish that the accused person was actually enticing or was trying to entice the foreign tourists on the pretext of providing cheap hotel and taxi to them in order to provide his unsolicited service and also misbehaved with them when the tourists denied to avail their service. Interestingly, the said foreign nationals never made any complaint to anyone. Even their names and nationality remained unknown as per the prosecution. In absence of any allegation from the said tourists, the prosecution has relied upon the testimony of State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 15 of 19 PW5 Arun Kumar, who is the eye witness to the incident. He has deposed that on 04.10.2013, he saw that 4 foreign nationals were stopped by 2 boys who were offering them cheap hotel and taxi service to which the said foreign nationals denied. However, during his cross examination he has stated that he was not aware about the conversation which took place between those persons as he was standing at a distance. It is pertinent to mention here that the eye witness PW5 has nowhere mentioned in his examination in chief regarding any kind of misbehavior by the accused towards the said foreign nationals rather he has stated that he could not say if the said tourists were being harassed by the accused. The essence of the allegations of the prosecution is "conversation" by which the accused allegedly offered his service as a tout, however, the PW5 has himself pleaded his ignorance regarding the conversation and has also stated that the said persons were not talking in English hence he could not even understand what they were talking. The testimony of PW5 is not sufficient to support the case of the prosecution.
20. Further, the prosecution has relied upon the testimony of the police officials i.e., PW2, PW3 and PW4 who have been stated to arrive at the spot. PW2 has deposed that he reached the spot during his patrolling duty and found that some persons were gathered there. He has also stated that soon State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 16 of 19 PW6 ASI Rakesh also reached the spot and after enquiry he got to know that the accused was indulged in the act of touting with the said foreign tourists. It is pertinent to mention here that the testimony of the PW2 in itself is hearsay in nature with regard to the actual act of touting as he has deposed regarding the information received by the IO PW6. To the contrary of PW2, the PW3 has stated that he was on patrolling duty along with PW2 and PW4 and they all saw that the accused persons were trying to take the foreigners forcefully for dropping them to hotels and taxi and the foreigners were denying to the same. Hence, there is a contradiction regarding the presence of PW2, PW3 and PW4 during the said incident of touting. Further, the PW3 has stated that the said tourists were talking in English language however he does not understand English. The PW3 has also stated that the said tourists talked about the incident to PW5 Ashok whereas the PW5 has testified that he saw the incident form a distance and could not tell about the conversation. Further, PW 4 has stated that there were 2 male foreign tourists however the other PWs have stated the no. of tourists to be 4. All these are material contradictions which cast serious doubt over the version of the prosecution.
21. Further, the IO, PW6 has deposed that when he reached the spot, the PW2, PW3 and PW4 were already present and they apprised him about the act of touting by the accused. He has State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 17 of 19 also stated that he made an enquiry from PW5 who also confirmed the incident. It is to be noted here that the IO did not recover anything related to touting upon the checking of the accused. Further, the IO himself has stated that he cannot understand English language and neither any translator was called to the spot. Also, no complaint was ever made by the said foreign tourists pertaining to the incident instead they wrote a letter to the IO stating that the accused has not done anything rather he was trying to help them. The said letter when put to the IO was neither denied nor admitted by him, rather he stated that he does not remember if he received any such letter. The postal receipts have also been attached with the said letter showing that it was sent to the IO. In absence of any complaint from the said foreign nationals and in view of the said letter written in support of the accused, the story of the prosecution is highly doubtful, rather the version of the accused induces faith.
CONCLUSION
22. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence charged against the accused person beyond reasonable doubt. In view of the above discussion, the court is of the considered opinion that the prosecution miserably failed to prove its allegations against the accused Aditya Madan that he was indulged in the act of touting. Hence, the State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 18 of 19 accused Aditya Madan stands acquitted for the offence punishable under section 4 (a) of The Delhi Prevention of Touting and Malpractices Act, 2010.
Announced in the open court (Vaibhav Kumar)
On 21.09.2023 in the MM-05/PHC/ND
presence of the accused. 21.09.2023
Note:- This judgment contains 19 pages and each page has been signed by me.
State Vs. Aditya Madan FIR No: 137/2013 PS. Barakhamba Road U/s 4A DPT & MAT Act 2010 Page 19 of 19