Delhi District Court
State vs . Ramesh Chand Aggarwal on 25 April, 2023
1
IN THE COURT OF MS. SNIGDHA SARVARIA : LD. CMM :
NEW DELHI DISTRICT : PATIALA HOUSE COURTS: NEW
DELHI.
Cr Cases 8075/2020
STATE Vs. Ramesh Chand Aggarwal
FIR No. 64/2020
PS Naraina
1. S. No. of the Case : 298/02
2. Date of institution of case : 07.12.2020
3. Date of Commission of Offence : 19.01.2020
4. Name of the complainant : ASI Sunil Kumar
5. Name, parentage & Address : Ramesh Chand Aggarwal
of accused S/o Sh. Kashmiri Lal
R/o H. No. G-216, Naraina Vihar,
New Delhi.
5. Offence complained of or proved : U/Sec.3 DPDP Act
6. Plea of Accused : Accused pleaded not guilty for offence U/Sec. 3 DPDP Act
7. Final Order : Acquitted Date of reserving the judgment : 11.04.2023 Date of pronouncement of judgment : 25.04.2023 THE BRIEF BACKGROUND & GENESIS OF FIR :
The present FIR was registered on the complaint that on 19.01.2020 at about 6:30 p.m. at A-27, Phase-II, in front of Naraina Loha Mandi, New Delhi, within jurisdiction of PS Naraina, one banner was found affixed on the electric pole on which " Diwali dhamaka Book Your Order Now Aggarwal Sweets (Naraina) Desi Ghee Dodha Barfi State vs. Ramesh Chand Aggarwal FIR No. 64/2020 PS Naraina 2 250/- per kg, soan papdi 180/-, Milk cake 280/- per kg, Kaju Barfi 480/-
(750gm) special gift pack, all mix mithai 250/- per kg, Boondi Ladoo 180/- kg. For booking contact M.9971066032, 7703961600, Offer Valid till 25th October, 2019" was written, which was belonging to you accused Ramesh Chand Aggarwal and you thereby committed an offence punishable U/Sec. 3DPDP Act.
2. After completion of investigation, charge-sheet was filed. Copies were supplied to the accused and notice U/Sec.251 Cr.P.C. was served upon the accused on 03.01.2023 for offence punishable under section 3 DPDP Act to which accused has pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. To prove its case, prosecution has examined 03 witnesses.
PW-1 is ASI Sunil Kumar who deposed that on 19.01.2020 he was posted at PS Naraina as ASI and on that day, he was on patrolling duty alongwith Ct. Vikas and while doing patrolling duty, at about 6:30 p.m. they reached in front of A-27 Phase-II, Naraina, New Delhi and they saw that one banner was hanged on the electric pole on which "Diwali dhamaka Book Your Order Now Aggarwal Sweets (Naraina) Desi Ghee Dodha Barfi 250/- per kg, soan papdi 180/-, Milk cake 280/- per kg, Kaju Barfi 480/- (750gm) special gift pack, all mix mithai 250/- per kg, Boondi Ladoo 180/- kg. for booking contact M.9971066032, 7703961600, Offer Valid till 25th October, 2019" was written. PW-1 deposed that he took the photographs of the banner from his mobile State vs. Ramesh Chand Aggarwal FIR No. 64/2020 PS Naraina 3 phone and removed the banner with the help of Ct. Vikas. He deposd that he took the measurement of the banner and it was 3.2 ft.x6.10 ft. He seized the said banner vide seizure memo Ex.PW1/A. He deposed that after that he prepared tehrir Ex.PW1/B and handed over the same to Ct. Vikas and sent him to PS for registration of FIR. After registration of FIR Ct. Vikas came back at the spot and handed over the copy of FIR and original rukka to him. He deposed that he deposited the banner in the Malkhana.
PW-1 deposed that on 31.01.2020 he served notice U/Sec.91 Cr.P.C. upon the accused which is Ex.PW1/C. He deposed that on 12.02.2020 the accused was produced before him in respect of notice U/Sec41A Cr.P.C Ex.PW1/D. PW-1 correctly identified the photograph as Mark A. PW-1 also correctly identify the accused in the Court. PW-1 also identified the banner as Ex.P-1.
During cross-examination by Ld. Counsel for the accused, PW-1 admitted that he did not file the departure entry alongwith the charge-
sheet. He deposed that he did not remember the number of departure entry. He admitted that there is no witness from electricity department to prove the electricity pole number. He further admitted that no electricity pole number is visible in the photographs. He admitted that there is no independent/public witness in the present case. He deposed that he did not file any certificate U/Sec.65B Evidence Act regarding the photographs. He deposed that he took the photographs from his Samsung mobile phone. He admitted that he did not obtain the CAF and CDR of mobile number mentioned in the banner. He admitted that the name of the accused was not mentioned on the banner. State vs. Ramesh Chand Aggarwal FIR No. 64/2020 PS Naraina 4 PW-1 denied the suggestion that no banner was affixed by the accused. He further denied the suggestion that the banner has been falsely planted in the present case.
PW-2 is HC Vikas who deposed that on 19.01.2020 he was on patrolling duty alongwith ASI Sunil Kumar. He further deposed on the similar lines as deposed by PW-1 and proved the documents which were prepared by PW-1. PW-2 also correctly identified accused in the Court and the case property as Ex.P-1.
During cross-examination by Ld. Counsel for the accused, PW-2 deposed that he did not remember the number of departure entry. He admitted that no electricity pole number is visible in the photographs. He further admitted that there is no independent/public witness in the present case. He admitted that the name of the accused was not mentioned on the banner. PW-2 denied the suggestion that no banner was affixed by the accused. He further denied the suggestion that the banner has been falsely planted in the present case.
PW-3 is ASI Sudesh Kumar who has proved registration of FIR as Ex.PW3/A, his endorsement on rukka as Ex.PW3/B and Certificate U/Sec.65B of Indian Evidence Act as Ex.PW3/C. PW-3 was not cross-examined by counsel for the accused despite opportunity given to him.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
4. Statement of accused Ramesh Chand Aggarwal was recorded in the Court on 28.03.2023 wherein all the incriminating facts emerged during trial were put to him distinctly, separately and specifically. Accused stated that he is innocent and has been falsely State vs. Ramesh Chand Aggarwal FIR No. 64/2020 PS Naraina 5 implicated in the present case. He stated that banner has been falsely planted upon him. He stated that he has nothing to do with the present case. He stated that no public witness was examined in the present case as the present case is a false case registered against him.
DEFENCE EVIDENCE
5. Accused chose not to lead any evidence in his defence.
EVALUATION OF THE PROSECUTION EVIDENCE
6. Accused was charged for offence under section 3 DPDP Act.
7. I have heard Ld. APP for the State and Ld. counsel for the accused, perused the record and have gone through the relevant provisions of the law.
RELEVANT PROVISIONS AND INGREDIENTS OF THE OFFENCE
8. At this juncture it is relevant to reproduce the relevant provision of law, which is as under:
"Section 3 : Penalty for defacement of property. - (1) Whoever defaces any property in public view by writing or marking with ink, chalk, paint or any other material except for the pur- pose of indicating the name and address of the owner or occu- pier of such property, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to fifty thousand rupees, or with both. (2) Where any offence committed under sub-section (1) is for State vs. Ramesh Chand Aggarwal FIR No. 64/2020 PS Naraina 6 the benefit of some other person or a company or other body corporate or an association of persons (whether incorporated or not), then, such other person and every president, chairman, director, partner, manager, secretary, agent or any other officer or persons concerned with the management thereof, as the case may be, shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence.
(3) The aforesaid penalties will be without prejudice to the provisions of Section 425 and Section 434 of the Indian Penal Code, 1860 (45 of 1860) and the provisions of the relevant Municipal Acts."
9. It is significant to note that accused in the present case has been charged with the offence under Section 3 of The Delhi Prevention of Defacement of Property Act, 2007, which provides penalty for defacement of any property in public view by writing or marking with ink, chalk, paint or any other material except for the purpose of indicating the name and address of the owner or occupier of such property. Section 3 (2) of the Act further renders the beneficiary of the act guilty of such offence unless he proves that the offence was committed without his knowledge or consent. The term 'defacement' has been defined under Section 2 (a) of the aforesaid Act, which includes impairing or interfering with the appearance or beauty, damaging, disfiguring, spoiling or injuring in any other way whatsoever, whereas, the term 'writing' has been defined in Section 2(d) of the Act, which includes printing, painting, decoration, lettering, ornamentation etc., produced by stencil. The term 'property' has been defined in Section 2(c) of the Act, so as to include any building, hut, structure, wall, tree, fence, post, pole or any other erection.
State vs. Ramesh Chand Aggarwal FIR No. 64/2020 PS Naraina 7
10. In view of the aforesaid provisions, before an accused is convicted for the offence under Section 3 (1) of DPDP Act, the prosecution is required to prove following facts beyond reasonable doubts:- (1) That the accused has defaced any property by writing or marking with ink, chalk, paint or any other material. (2) That the said property is situated in a public view. (3) That the writing or marking on the property in a public view was not for indicating the name and address of the owner and occupier of the said property.
11. In order to secure conviction of the accused for the offence under Section 3(2) of the Act, the prosecution was required to prove that the offence as per Section 3(1) of the Act had been committed for the benefit of the accused.
12. No independent witness was joined in the investigation by the IO. PW1 and PW2 have not explained in their testimonies as to why the public witnesses were not joined in the investigation. It was within the reach of the IO to examine the independent witness to prima facie satisfy that the banner in question was affixed on the spot, failure to do so raises adverse inference qua prosecution case. Also, if public persons refused to join the investigation, then appropriate action under the law should have been taken. Also, why no written notice was given to public persons has also not been explained. This raises an adverse inference qua prosecution case.
13. The witnesses PW-1 & PW-2 have failed to point out as to State vs. Ramesh Chand Aggarwal FIR No. 64/2020 PS Naraina 8 how accused was pinned down as the installer of the banner in question as much as, IO has neither recorded the statement of public persons working/residing in the locality where the banner in question was found affixed nor has he recorded the statement of the printer, nor any eye- witness was found. Merely by calling on phone number on the banner does not link accused to the offence committed in the absence of CAF and CDR.
14. PW-1 and PW-2 did not bring on record any register to show timings regarding when they left PS and returned back to PS after patrolling, so it raises adverse inference with respect to prosecution case
15. None of the witnesses examined by the prosecution in its evidence have stated that they had seen the accused putting up the banner in question.
16. The prosecution witnesses have stated that IO/PW-1 took photograph of the spot. The photograph was allegedly taken through an electronic device but Certificate U/Sec.65B of Indian Evidence Act to prove photograph has also not been filed on record. Thus, the photograph has not been proved as per Indian Evidence Act. The prosecution has not proved the CAF/CDR that the mobile number on the banner is of the accused.
17. In a case titled as T.S. Marwah & Others Vs. State, 2008 (4) JCC 2561, it has been held by Hon'ble High Court of Delhi: -
State vs. Ramesh Chand Aggarwal FIR No. 64/2020 PS Naraina 9 "... ... ... mere putting of the banner will not be covered by Section 3 of the West Bengal Prevention of Defacement of Property Act, 1976. It is true Section 2 (aa) defines de- facement which includes impairing or interfering with the appearance, beauty, damaging, distinguishing, spoiling or injuring in any other way whatsoever, but Section 3 (1) is not all embracing and it refers to only such type of deface- ments for the purpose of prosecution as is done by writing or marking with ink, chalk, paint or any other material."
18. Thus, in the absence of any proof as to the affixation of the alleged advertisement banner by or at the behest of the accused, much less, the proof beyond reasonable doubts qua the said fact, there is no question of the accused being guilty for the offence of defacement of the public property within the meaning of Section 3 of DPDP Act.
19. In view of the aforesaid discussions, accused Ramesh Chand Aggarwal is entitled to be acquitted and is hereby acquitted of the offence punishable U/Sec.3 of the DPDP Act.
CONCLUSION
20. In view of the aforesaid discussions, accused Ramesh Chand Aggarwal is hereby acquitted for the offence punishable U/Sec. 3 of the DPDP Act.
21. Previous Bail bonds and supardarinama, if any, is cancelled. Surety, if any, is discharged. Endorsement, if any, be cancelled. Originals, if any, be returned.
State vs. Ramesh Chand Aggarwal FIR No. 64/2020 PS Naraina 10
22. Fresh Bail Bonds in terms of Section 437-A Cr.PC have been furnished by the accused Ramesh Chand Aggarwal today. Considered. Accepted. The same shall remain in force for a period of six months from today.
File be consigned to Record Room after due compliance.
Digitally signedAnnounced in the open court by Snigdha
on 25.04.2023 Snigdha Sarvaria
Sarvaria Date:
2023.04.25
(Snigdha Sarvaria 14:51:25
) +0530
CMM/NDD/PHC
New Delhi/25.04.2023
State vs. Ramesh Chand Aggarwal
FIR No. 64/2020
PS Naraina