Delhi District Court
Cc No. 1800/1 Mcd vs . R.C. Gupta 1/13 on 6 October, 2012
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE SAKET COURTS:
DELHI
In Re: MCD V. R.C. GUPTA
CC No. 1800/01
U/s 347/461/466 of DMC Act 1957
Date of Institution of Case : 20.02.2002
Judgment Reserved for : 06.10.2012
Date of Judgment : 06.10.2012
JUDGMENT:
(a) The serial no. of the case : 1800/1
(b) The date of commission of offence : 27.12.2001
(c) The name of complainant : MCD
(d) The name, parentage, of accused : R.C. Gupta s/o Sh. M.R. Gupta, R/o 56A,
DDA Flats, Masjid Moth, New Delhi.
Present Address : As above
(e) The offence complained of : U/s 347/461/466 of DMC Act 1957
(f) The plea of accused : Pleaded not guilty
(g) The final order : Accused acquitted
(h) The date of such order : 06.10.2012
CC No. 1800/1 MCD Vs. R.C. Gupta 1/13
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 27.12.2001 at at 12.15 p.m., accused R.C. Gupta was found using scooter garage No. SG55 DDA Flats, Gulmohar Enclave, New Delhi for commercial purposes i.e. for running an office in the name and style of M/s Nipun Implex in contravention of the sanctioned/permissible use which was residential only and thus thereby the accused has committed an offence punishable u/s 347/461/466 of DMC Act 1957.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. accused was supplied the documents. Thereafter vide orders dated 02.08.2005, notice u/s 347/461/466 of DMC Act 1957 was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined eight witnesses, thereafter the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case. He also examined one witness in his defence. A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 Sh. Brij Mohan, Clerk DAD, Urban Development duly proved copy of CC No. 1800/1 MCD Vs. R.C. Gupta 2/13 notification dated 10.08.1990 which is Ex. PW1/A.
5. During his cross examination he stated that he has simply brought the record and have no personal knowledge of the present case.
6. PW2 Sh. B.R. Verma deposed that he was posted as Superintending Engineer in South Zone, MCD w.e.f. 05.11.2001 to 13.07.2004. He deposed that one prosecution report pertaining to misuser was placed before him by the building department. He deposed that after perusal of the said report he satisfied himself with the report. He deposed that he forwarded the same to the Deputy Commissioner for according the prosecution sanction against the accused vide his endorsement i.e. Ex. PW2/A. During his crossexamination he stated that he did not personally visit the property in question. He stated that he does not have any personal knowledge of this case except the report which he forwarded. He stated that documents regarding ownership of the property in question were not produced before him. He denied the suggestion that he forwarded the report in a mechanical way without satisfying himself with the report. He denied the suggestion that accused is neither the owner nor occupier of the property in question or that he has been falsely implicated in the present case.
7. PW3 Sundar Lal, Assistant Town Planner deposed that he is working as Assistant Town Planner of South Zone in MCD. He deposed the case relates to property bearing CC No. 1800/1 MCD Vs. R.C. Gupta 3/13 no. SG55 of DDA flat no. 265, Gulmohar Enclave, New Delhi. He deposed that no copy of the lay out plan is available in the record of Town Planning Department as such the same cannot be produced before the court.
8. During cross examination he stated that he does not have any personal knowledge of this case.
9. PW4 Sh.S. D. Sharma, Assistant Engineer deposed that he was posted as AE in the building department South Zone during the year 2001. He deposed that the prosecution report Ex. PW4/A prepared by Sh. Ashok Kumar Jr. Engineer (B) regarding change of the use of property/garage No. G55, DDA Flats, Gulmohar Enclave, New Delhi from residential to commercial at the instance of the accused and the same was placed before him. He deposed that he verified the facts of the prosecution report at point A on the Ex. PW4/A which was signed by him at point B on Ex. PW4/A. He deposed that prosecution report was forwarded to the Executive Engineer (B) Sh. Qaiser Javed for further orders.
10. During cross examination he stated that he does not have any personal knowledge of this case. He stated that he has never visited the property No. G55, DDA Flats, Garage. He stated that he did not verify ax to who is the owner/tenant of the property No. G55, DDA Flats, Gulmohar Enclave, New Delhi (Garage). He stated that he cannot say how many report he signed on the day when he signed on this for this case. He stated CC No. 1800/1 MCD Vs. R.C. Gupta 4/13 that he has stated in his report that the report of Sh. Ashok Kumar is correct. He stated that this has been stated by him only on the report of Sh. Ashok Kumar, JE. He stated that he did not hold any personal enquiry in this case regarding the misuse of the said property. He denied the suggestion that he was deposing falsely. He denied the suggestion that accused has nothing to do with the property No. G55, DDA Flats, Gulmohar Enclave, New Delhi and he has been falsely implicated in this case.
11. PW5 Sh. Ashok Kumar, AE, Planning deposed that he was posted as a Junior Engineer (building) in the Building Department, South Zone, MCD in the year 2001. He deposed that during the course of his official duties duty he visited the property/garage bearing No. G55, Gulmohar Enclave on 27.12.2001 at 12.15 p.m. and he found that accused changed the use of above mentioned property from residential to commercial by way of running an office of M/s Nipun Impex without written permission of the Commissioner of MCD. He deposed that the permissible use of this property is residential/garage only. He deposed that he asked the accused to show the written permission in respect of running the commercial activities in the property in question but the accused failed to show any written permission. He deposed that he prepared the prosecution report Ex. PW4/A. He deposed that the prosecution report Ex. PW4/A was placed before Sh.S.D. Sharma, AE (B) for further orders.
12. During his cross examination he stated that he cannot recollect as to how many prosecutions he conducted on 27.12.2001. He stated that he did not verify from DDA as to CC No. 1800/1 MCD Vs. R.C. Gupta 5/13 who is the owner of Garage No. G55, Gulmohar Park, New Delhi. He voluntarily added that the accused met at the site who told that he is running the office of Nipun Impex. He stated that he did not verify the owner of Nipun Impex but he has seen himself the running of office of Nipun Impex. He stated that he did not take any photograph of Garage no. G55, Gulmohar Enclave, New Delhi. He stated that he did not join any independent public witness while he visited the site during his official round of the area. He stated that he did not verify from Sale Tax Department or Income Tax Department or bank or any other department regarding Nipun Impex. He stated that he did not take the signatures of accused on his report. He stated that he cannot say how many persons were present in the office of Nipun Implex. He stated that he did not enquire from the person present in the office of Nipun Impex. He stated that he has not brought the original lay out plan, sanctioned building plan and notifications. He stated that these documents are in the custody of record keeper. He again said that it is not in his custody. He stated that he did not gave any show cause notice to the accused or any other person as the same is not required. He denied the suggestion that accused is neither owner/tenant/occupier of the said property. He stated that he does not know whether the accused is active social worker of Congress. He stated that he stayed for 10 minutes approximately when he visited the property and he noted the facts and he prepared the prosecution report in their office at Green Park.
13. PW6 Qaiser Javed deposed that he worked as Executive Engineer (B) in the CC No. 1800/1 MCD Vs. R.C. Gupta 6/13 Building department at South Zone MCD in the year 2001. He deposed that he has singed the report of AE of South Zone on Ex. PW4/A in respect of misuse of the property in question. He deposed that thereafter the report was forwarded to Superintendent Engineer South Zone for taking further orders.
14. During his cross examination he stated that he does not have any personal knowledge of this case. He stated that he does not remember the facts of this case. He stated that he did not verify regarding the ownership/occupier of the property in question. He denied the suggestion that he was deposing falsely and he has signed at the behest of JE and AE.
15. PW7 Anurudh Record Keeper, Building Department, South Zone deposed that he has not brought the sanction building plan of property bearing no. scooter garage no. G55 of DDA Flats Gulmohar Enclave, New Delhi as the same is not available in the office of the Executive Engineer Department. He deposed that no building plan of this property was sanctioned by the MCD. He deposed that building plan of this property may be sanctioned by DDA.
16. PW8 Sh. Manoj Kumar, deposed that he was Deputy Commissioner, South Zone, MCD w.e.f. July, 2001 to August, 2002. He deposed that during his said tenure, he received a prosecution report regarding misuser activities in garage in SG55, Gulmohar Enclave being carried out by the accused. He deposed that the said prosecution report CC No. 1800/1 MCD Vs. R.C. Gupta 7/13 was prepared by the then J.E., verified by the then A.E., forwarded by the then Executive Engineer and recommended by the then S.E. He deposed that on receiving the same, he considered it and accorded sanction to prosecute the matter. He deposed that his endorsement in this regard is at point X and his signatures are at point Y on Ex. PW2/A. He deposed that he filed the present complaint i.e. Ex. PW8/A. He deposed that he was empowered to file the said criminal complaint as per notification dated 10.08.1990.
17. During cross examination he admitted that he has filed the complaint Ex. PW8/A. He admitted that it is mentioned in the Para1 that accused Atul, Owner/Occupier of property i.e. SG55, DDA flats, Gulmohar Enclave was found committing the offence on 27.12.2001 at 12.15 pm. He stated that he granted the prosecution sanction against accused Atul, owner/occupier. He stated that he had no personal knowledge of the premises or its owner or the activities carried on therein and he relied upon the report of the J.E. as forwarded by the A.E. for prosecution of the accused. He stated that the draft was vetted by the law department and prepared by the building department. He stated that he does not remember how many sanctions he granted on that day as the matter is 10 years old. He denied the suggestion that he was deposing falsely. He denied the suggestion that he accorded the sanction in a mechanical way/routine manner without going through the file.
18. This so far is the evidence led by complainant/MCD in the present matter. The CC No. 1800/1 MCD Vs. R.C. Gupta 8/13 accused also examined one witness in his defence.
19. DW1 Kiran Pal, UDC Sales Tax Department prove the registration certificate no. LC/099/0400244533/0601 (new tin number 07160244533) dated 28.08.2001 issued in the name of RCG Enterprises, Shop no. 1400/1, Hans Plaza, Kotla Mubarakpur, New Delhi i.e. Ex. DW1/A in the name of R.C. Gupta.
20. During cross examination he admitted that the certificate Ex. DW1/A has not been issued by MCD.
21. I have heard the arguments advanced at bar by the learned defence counsel as also the learned AMP for MCD. I have also carefully gone through the evidence recorded in the matter and perused the documents placed on record by complainant/MCD in this case.
22. After going through the material on record and giving my thoughtful consideration to the rival contentions raised at bar I am of the opinion that the complainant/MCD has miserably failed to bring home the guilt against the accused.
23. In order to establish its case the MCD/ complainant had to prove beyond reasonable doubt that scooter garage no. SG55, DDA Flats, Gulmohar Enclave, New Delhi CC No. 1800/1 MCD Vs. R.C. Gupta 9/13 was being used by accused R.C. Gupta for running an export office in the name and style of M/s Nipun Implex whereas the said premises could only be used for the purpose of residential garage However, the prosecution could neither connect the accused with the premises in question i.e. the garage nor could it even remotely establish that an export house in the name and style of M/s Nipun Implex was being run from the garage in question.
24. During the entire trial prosecution could not bring on record any document to connect the accused with the garage in question. No document of ownership or any other document in the form of any lease /license agreement could be brought on record by MCD/complainant to connect the accused with the garage in question. The star/material witness of the prosecution was JE Sh. Ashok Kumar who was examined as PW5 and his testimony makes it amply clear that no efforts whatsoever was made by him or any other concerned official of the Building Department Municipal Corporation of Delhi to substantiate their claim of occupation and misuser by the accused.
25. The JE i.e. PW5 categorically admitted during his cross examination that he did not make any efforts to verify the ownership of garage in question i.e. who owned the same and how the same came in possession of the accused. There is no document to even remotely prove that the accused is the owner of garage in question. If he is not the owner then the JE ought to have collected some documentary evidence to connect the accused CC No. 1800/1 MCD Vs. R.C. Gupta 10/13 with the garage as well as to explain the court as to in what capacity the accused was occupying the property under misuse which necessitated the present prosecution. Whether he was tenant therein or licensee or a tress passer etc is not clear. The JE who had prepared the prosecution report ought to have made some efforts so as to give some weightage to his prosecution report/present complaint. If indeed an export house was being run from the premises in question then the JE ought to have collected some material from Sale Tax Department or the Income Tax Department or Bank or atleast one or two photographs showing the export house in question. In the absence of any photographs or report from Sale Tax Department or any other documentary or oral proof no presumption can be drawn that indeed the garage was being used for running an export house.
26. Though Ld. AMP for MCD relied upon two judgment of Hon. High Court of Delhi titled as MCD Vs. Bhujbir Singh dated 17.01.1997 and another titled as Surender Singh Vs. MCD dated 30.11.2011 while arguing that ownership was irrelevant i.e. MCD was not required to prove that the accused was owner of the premises in question. However I do not agree with the Ld. AMP for MCD. Firstly both the above rulings were regarding unauthorized construction wherein the liability is affixed on the person carrying on the construction in contravention of the building by laws. Secondly, if not the ownership then alteast MCD was expected/bound to prove that the accused was somehow related to the property/premises in question i.e. either as a landlord or a tenant or a licensee etc. Unless the accused is connected with the property no liability can be affixed upon him. As is the CC No. 1800/1 MCD Vs. R.C. Gupta 11/13 case MCD failed to connect the accused with the premises in question.
27. Apart from JE Ashok Kumar i.e. PW5 the remaining witnesses examined by MCD are formal in nature. Admittedly none of them had ever visited the premises in question and none of them made any efforts to seek clarification from JE as to the material relied upon by him for substantiating the prosecution report. The Assistant Engineer, the Executive Engineer, the Superintending Engineer and the DC concerned admitted that while forwarding the report and granting sanction for prosecution they did not bother to verify the claims of JE regarding the ownership/occupation by the accused. They did not bother to check the ownership documents of the premises nor made any efforts to even prima facie satisfy themselves regarding the claims of JE. No proof of misuser in the form of report from their department or DDA or Sale Tax or Income Tax Department etc. was sought by them and it seems that they forwarded the report of the JE blind foldedly. In fact Sh. Manoj Kumar, the then DC, South zone, MCD who was examined as PW8 during his cross examination admitted that in his complaint Ex. PW8/A in paragraph 1 the name of the owner/occupier of premises in question was mentioned as Sh. Atul. However admittedly the sanction for prosecution was granted against R.C. Gupta i.e. the accused. This does not make any sense. The complaint and the prosecution report is absolutely silent about the said Sh. Atul and his relation with the property in question. All this goes on to show that no mind was applied by any of the above officials while dealing with the report of the JE.
CC No. 1800/1 MCD Vs. R.C. Gupta 12/13
28. To worsen the case of MCD they failed to prove the layout/sanctioned plan which was sine qua non to prove the permitted user/ the alleged misuser/ the alleged contravention. The officials appearing for MCD washed off their hands while stating that no record is available with them.
29. Hence the MCD/ complainant could neither connect the accused with the premises in question nor it could prove the misuser. Accused is entitled to acquittal
30. I order accordingly.
Announced in the open (Gaurav Rao)
Court today MM (SD)/Delhi/06.10.2012
CC No. 1800/1 MCD Vs. R.C. Gupta 13/13
CC No. 1800/1 MCD Vs. R.C. Gupta
06.10.2012
Pr: Ld. AMP for MCD.
Accused on bail present today along with his counsel.
Final arguments heard.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
File be consigned to Record Room.
(Gaurav Rao) MM (SD)/Delhi.
06.10.2012
CC No. 1800/1 MCD Vs. R.C. Gupta 14/13