Delhi District Court
Mcd vs . Seema Sharma on 11 July, 2012
1
IN THE COURT OF SH.KISHOR KUMAR
METROPOLITAN MAGISTRATE02, (MUNICIPAL)
DWARKA COURTS:DELHI.
IN REF:
CHALLAN NO.627/12
NAJAFGARH ZONE
U/S 417/397 DMC ACT, 1957.
1. Challan NO. : 627/12
2. Date of Institution : 7.6.12
3. Name of the complainant : MCD
4. Name of the accused, and
his parentage and residence : Seema Sharma, w/o
Sh.Naresh Sharma r/o D419,
Palam Ext. Dwarka, New
Delhi.
5. Date when judgment : Not Reserved.
was reserved
CHALLAN NO.627/12
MCD VS. SEEMA SHARMA
2
6. Date when Judgment : 11.07.12
was pronounced
7. Offence Complained of : U/S 417/ 397 DMC Act, 1957.
8. Plea of accused : Pleaded not guilty and
claimed trial.
9. Final Judgment : Challan is dismissed.
Accused is acquitted
JUDGEMENT
1. Accused Seema Sharma w/o Sh.Naresh Sharma has been challaned by the complainant/MCD for running the trade of sale of Kiryana goods without Municipal License and under unhygienic condition.
2. The challan was put up before the court on 7.6.12. This court took cognizance of the challaned offences against the accused and summoned her. Initially, accused did not appear on service of summons. Therefore, bailable CHALLAN NO.627/12 MCD VS. SEEMA SHARMA 3 warrants issued against her. Accused appeared along with her husband Sh.Naresh Sharma and had chosen to contest the present challan. Copy of challan supplied to the accused. Accordingly, notice u/s 251 Cr.P.C for the offences punishable u/s 417/397 DMC Act was framed against the accused to which she pleaded not guilty and claimed trial. Accused disclosed her defence to the effect that they have been paying the conversion charges to the MCD every year and even had applied for grant of license but the same was not issued.
3. Complainant examined two witnesses i.e. CW1 Sh.Ashok Kumar, PHI, Najafgarh Zone and CW2 Sh.N.K.Meena , Law Officer/AMP, Najafgarh Zone.
4. Thereafter, statement of husband of accused Naresh Sharma u/s 313 Cr.P.C was recorded as he claimed himself to be the AR of the accused, authorized by her to contest the present challan on her behalf and also being her husband.
5. It is submitted by Ld.AMP for the complainant/MCD that on the basis of documents on record and the deposition of witnesses led on behalf of CHALLAN NO.627/12 MCD VS. SEEMA SHARMA 4 the complainant/MCD, its case stands successfully proved against the accused for running the trade of Kiryana goods without any municipal license. It is further argued by Ld.AMP for the complainant/MCD that irrespective of depositing the commercial conversion charges, parking charges and other charges with the complainant/MCD, the accused was still required license from it u/s 417 DMC Act. Maximum punishment is prayed for by Ld.AMP.
6. On the other hand , it is argued by accused that even as per the deposition of CW1 the road on which the shop of the accused is situated is a notified area and the accused has been depositing the commercial conversion charges with the complainant/MCD and the Kiryana shop being one of the trade which can be run anywhere being a daily based need of the society, accused was not supposed to have license from the complainant/MCD u/s 417/397 DMC Act. CW1 has deposed that during his cross examination regarding the insanitary condition but whatever he had deposed during his cross examination is not mentioned in the challan Ex.CW1/1. The allegations are very vague and ambiguous. The complainant/MCD could not prove its case against the accused beyond reasonable doubt and, hence, the challan Ex.CW1/1 deserves to be dismissed resulting in acquittal of the accused. It is further submitted by the accused that apart from the above submissions, the CHALLAN NO.627/12 MCD VS. SEEMA SHARMA 5 trade of the accused of selling of Kiryana goods is not an enlisted item in Schedule Eleven either in part I or part II of section 417 DMC Act and, therefore, there was no need on the part of the accused to have license u/s 417 DMC Act.
7. I have heard Ld.AMP for the complainant , accused and have carefully gone through the record.
8. CW1 Sh.Ashok Kumar, PHI, Najafgarh zone is the challaning officer, had deposed in his examinationinchief recorded on 9.7.12 that on 5.6.12 at about 1 p.m he was issuing challan in the area of Palam Extension and during his visit, he inspected the shop of the accused i.e D419, Palam Extension which was a departmental store. He asked the license from the employees. The license was not shown to the challaning officer. Thereafter, the challaning officer CW1 issued the challan Ex.CW1/1 bearing his signatures at point A.
9. CW1 has been cross examined by AR/husband of the accused. Mainly CW1 has been cross examined on the point that accused was not selling kiryana goods under any unhygienic condition to which CW1 has denied. Further CW1 has put a question whether trade of the accused falls in the CHALLAN NO.627/12 MCD VS. SEEMA SHARMA 6 Eleventh Schedule part I or Part II to section 417 DMC Act, to which CW1 has shown his ignorance. CW1 deposed that the road where the shop in question is situated is a notified road according to the Master Plan 2021 and that on a notified road commercial activities can be carried out. CW1 has further deposed that according to Supreme Court directions , there are 24 categories which can be run anywhere irrespective of notified area and kiryana shop is one of those categories. But volunteered that license is still required by such kiryana shop u/s 417 DMC Act.
10. CW2 Sh.N.K.Meena, Law officer is a formal witness who being the prosecutor in this court on behalf of complainant had put up the present challan Ex.CW1/1 bearing his signatures at point B for prosecution of the accused. CW2 has filed on record an office order NO.F.4(22)/860 Law Corp./6 dated 18.8.1986 as mark "A" vide which he has been authorized to make complaint to the court for prosecution of the accused persons.
11. CW2 has also been cross examined by husband/AR of the accused on the same line as cross examination done of CW1.
12. In view of the rival contention of the accused that their trade does CHALLAN NO.627/12 MCD VS. SEEMA SHARMA 7 not fall in Schedule Eleven either part I or part II of section 417 DMC Act, I have gone through part I as well as part II of Eleventh Schedule and has certainly come to the conclusion that kiryana shop is not really mentioned either in part I or in part II of the Eleventh Schedule appended to section 417 of DMC Act. Therefore, it is held that accused has been wrongly challaned for the offences punishable u/s 417.397 DMC Act.
13. Another allegation of the complainant/MCD is that the accused was found running trade of kiryana shop under unhygienic condition. Perusal of challan Ex.CW1/1 reveals that except mention of under unhygienic condition nothing explanatory as to how and what in unhygienic condition was there on the spot, has not been mentioned in the challan Ex.CW1/1. Further while deposing in his examinationinchief, CW1 has not deposed that accused were running the trade of kiryana shop under unhygienic condition. It is only during the cross examination process of CW1 that CW1 has whispered about hygiene. The deposition of CW1 regarding unhygienic condition cannot be looked into when deposed only during course of cross examination. CW1 should have specifically mentioned about the unhygienic condition in the challan Ex.CW1/1 as also should have deposed on the same line during his examination in chief. Admittedly, no independent witness has been joined to CHALLAN NO.627/12 MCD VS. SEEMA SHARMA 8 the inspection by the chalaning officer CW1. Therefore, the allegations of CW1 that accused was found running the trade of kiryana shop under unhygienic condition cannot be relied upon at this stage for want of any independent witness, and non mentioning of the same in the challan and chief of CW1.
14. It is a cardinal principle of criminal jurisprudence that the prosecution should stand on its own legs and prove its case beyond any reasonable doubt against the accused to bring home the guilty of the accused.
15. had In Narain Singh V. State, (1972) 2 Crimes 464 (Delhi) held that " the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court on its own make out a new case for the prosecution and convict the accused on that basis".
16. CW1 has filed on record mark "A" during his examination as CW2. However, the same cannot be relied upon as its original has not been produced before the court for perusal and comparison. Nor any authorized person has CHALLAN NO.627/12 MCD VS. SEEMA SHARMA 9 produced the same in a certified way. Mark A has not been proved on record in accordance with the provisions of Indian Evidence Act and, hence, the same is inadmissible in evidence.
17. In view of the above discussion, the complainant has not been able to prove its case against the accused Seema Sharma that on 5.6.12 , at about 1.00 p.m, accused was found running trade of Kiryana goods without license under unhygienic condition of any reasonable doubt. Therefore, complaint Ex.CW1/1 is hereby dismissed and the accused is acquitted of the charged offences punishable u/s 417/397 DMC Act. Bail bond if any stands cancelled. Surety discharged. File be consigned to R.R. Announced in the open court on 11th July,2012. (KISHOR KUMAR) METROPOLITAN MAGISTRATE02, (MUNICIPAL) DWARKA COURTS:DELHI.
CHALLAN NO.627/12 MCD VS. SEEMA SHARMA 10 CHALLAN NO.627/12 MCD VS. SEEMA SHARMA