Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal No. 940/2011
Date of Decision : 19.03.2012
D.D. A. ..... Appellant
Through: Mr. Rajesh Mahajan, Adv.
versus
VIP MARBLE EMPORIUM & ORS. ..... Respondents
Through: Mr. Vikram Singh, Adv.
CORAM :
HON’BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. This is an appeal filed by the appellant against the judgment
dated 07.04.2007 passed by Sh. A. K. Chaturvedi, the learned
Metropolitan Magistrate, New Delhi in complaint case titled M/s
DDA Vs. VIP Marble Emporium & Ors. acquitting the accused
company and its partners for an offence under Section 14 read
with Section 29(2) of the Delhi Development Act, 1957 for
misusing the premises contrary to the Master Plan/Zonal
Development Plan.
2. Briefly stated the facts of the case are that on 02.08.2001, an
inspection was conducted by Mr. S. C. Saxena, Junior Engineer,
Crl.A.No. 940/2011 Page 1 of 8
DDA whereupon accused Fayaz Ahmed and Shahdat Ali,
allegedly partners, were found putting to use the premises no.
372, Sultanpur, Main Mehrauli Gurgaon Road, Village Ghitorni,
New Delhi, for running a shop of marble emporium at the ground
floor under the name and style of M/s VIP Marble Emporium in
an area of about 500 sq. ft. The said premises according to the
appellant could have been used only for agricultural purpose or
as water body as per the Master Plan or Zonal Development
Plan. The appellant, in support of his case had examined two
witness, namely, Sh. S. C. Saxena, Junior Engineer, DDA as
CW1, who proved the Zonal Map as Exhibit CW1/B, Lay Out Plan
as Exhibit CW1/C, Show Cause Notice as Exhibit CW1/D,
Sanctioned Plan as Exhibit CW1/E, and Complaint as Exhibit CW
1/F, copy of the Resolution as Exhibit CW1/G-F1 and Gazette
Notification as Exhibit CW1/H-H1.
3. The second witness examined on behalf of the appellant was Mr.
S. K. Sharma, UDC, Sales Tax Department, New Delhi who
testified that the application dated 11.06.1999 for change of
address from 428/3, Swatantar Senani Market, Ghitorni to 372,
Sultanpur, Main Mehrauli Gurgaon Road, Village Ghitorni, New
Delhi was applied for by the respondent. Documents proved in
Crl.A.No. 940/2011 Page 2 of 8
this regard are Exhibit as CW2/A and copy of assessment order
as Exhibit CW 2/B-D. Thereafter, the appellant moved an
application under Section 311 Cr.P.C., CW-3 Sh. M.L. Ahuja, STO
was examined and he proved his earlier statement and
verification report dated 11.05.2004 Exhibit CW-3/DY. The
inspection was done on 11.05.2004 by the officials of the DDA
whereupon it was found that no business was being run at 372,
Sultanpur, Main Mehrauli Gurgaon Road, Village Ghitorni, New
Delhi. The statement of the accused was recorded and
thereafter the respondent-accused examined two witnesses
DW1/Kamaludin who stated that the shop of the
respondent/accused no. 1 was also at 372, Sultanpur, Main
Mehrauli Gurgaon Road, Village Ghitorni, New Delhi and the said
shop was functioning till about 3-4 months ago and it had been
lying sealed for the last four months. The witness was examined
on 05.02.2007. Similarly, DW-2/Fayaz Ahmed was also
examined by the accused persons to prove their defence that
they were not functioning from 372, Sultanpur, Main Mehrauli
Gurgaon Road, Village Ghitorni, New Delhi.
4. After hearing the arguments, the learned Magistrate acquitted
the respondents/accused persons by observing that the
Crl.A.No. 940/2011 Page 3 of 8
petitioner has failed to prove the guilt of the
respondents/accused beyond reasonable doubt. In this
regard, it referred to the testimony of CW-3/Mr. M. L. Ahuja,
STO who proved verification report as Exhibit CW-3/DY, which
was an inspection report by the DDA conducted on 11.05.2004
indicating that no marble shop was functioning on that date at
372, Sultanpur, Main Mehrauli Gurgaon Road, Village Ghitorni,
New Delhi. The learned Magistrate observed that CW-2 was
only a clerk while as CW-3 was a Sales Tax Officer, and thus, a
person of much higher rank, and accordingly, his testimony
carries more weight so as to make him believe that no marble
shop was functioning at the address given in question.
5. I have heard the learned counsel for the appellant as well as the
learned counsel for the respondent-accused and have also gone
through the record.
6. Mr. Rajesh Mahajan, the learned counsel for the appellant has
stated that the learned Magistrate has failed to appreciate the
fact that the verification report Exhibit as CW-3/DY approved by
CW-3 was a report with reference to the inspection dated
11.05.2004, while as the inspection, on the basis of which, the
respondents/accused were prosecuted was dated 02.08.2001. It
Crl.A.No. 940/2011 Page 4 of 8
was also contended by him that the learned Magistrate has
grossly erred by observing that since CW-3 is a Sales Tax Officer
is much superior in rank than that of DW-2, therefore, his
testimony carries more weightage. The learned counsel for the
respondents/accused could not refute this contention in any
manner, except it was contended that as on date no marble shop
is functioning at the address in question.
7. I have considered the submissions, made by the learned counsel
for the appellant and have gone through the record.
8. The learned Magistrate seems to have fallen into an error in
appreciating the evidence by observing that the verification
report exhibit as CW-3/DY was an inspection report conducted
on 11.05.2004 on which date admittedly no marble shop was
functioning at the address in question. That cannot make any
reasonable person to conclude that the shop was not in
existence on 02.08.2001. CW-1 is the Junior Engineer who has
specifically stated that on 02.08.2001, he had conducted the
inspection along with his team, of the premises in question and a
marble shop was found to be functioning from the said address.
This testimony has remained unshaken and there is absolutely
no reason as to why the government servant would
Crl.A.No. 940/2011 Page 5 of 8
testify falsely against the respondent/accused. It has also not
been the case of the respondent/accused that CW-1 had any
enmity to testify against them. The learned Magistrate seems
to have fallen into an error by observing that the testimony of
CW-3 is that of a Sales Tax Officer (hereinafter referred to as
‘STO’) while as the testimony of DW-1 is a junior level officer
and much below in rank to STO, and therefore, credence could
not be given to the same. The credence to the testimony of a
witness is not to be based on the post which he holds, a poor
person may be truthful as compared to a rich person or holder of
a higher post. There cannot be a generalization in this regard.
The reasoning adopted by the learned Magistrate is totally
erroneous. The truthfulness and the credence of the witness has
to be assessed by reading the entire testimony and the
examination-in-chief as well as the cross-examination of the
witness and then arrive at a conclusion as to whether his
testimony inspires confidence so as to believe in what he says.
In the instant case, I have gone through the testimony of CW-1
and I do not find any infirmity which will make me disbelieve
that he is deposing falsely against the respondents/accused that
they were running a marble shop. It is a different thing that in
Crl.A.No. 940/2011 Page 6 of 8
that area, there may have been other marble shops, but only
one marble shop has been booked for the purpose of being
prosecuted. But even then, this is not brought about in the
cross-examination, and consequently, the Court cannot venture
into conjecture and surmises in this regard. It was also
inappropriate on the part of the learned Magistrate to observe
that there is no independent corroboration to the testimony of
CW-1, and therefore, his testimony cannot be relied upon.
Admittedly, CW-1, is an official of a public body and there was
no reason to disbelieve the testimony of this person and
although having an independent corroboration would always
have been better, but in the absence of the same, it could not be
said that the testimony of CW-1 cannot be relied upon. I do not
subscribe to this kind of conclusion arrived at by the learned
Magistrate, and therefore, I feel that it is not in dispute that the
area in question can be used only for agricultural purpose or for
water body. In this regard, the appellant has proved necessary
plans to which the area can be put to use, therefore, the
judgment acquitting the respondents/accused, in my view, is
liable to be set aside being erroneous.
Crl.A.No. 940/2011 Page 7 of 8
9. I, accordingly, set aside the judgment dated 07.04.2007 and
hold the respondents/accused guilty of having violated Section
14 read with Section 29(2) of the Delhi Development Act, 1957.
Now comes the question of imposing sentence, I feel that the
matter is old one and the respondents/accused, admittedly, have
closed the marble shop w.e.f. 11.05.2005 which is proved by the
documents, exhibited as CW-3/DY by the appellant themselves
and a lenient view deserves to be taken to release all the
respondents/accused persons except the company after
admonition. So far as the company is concerned, though it
cannot be admonished, it is visited with a token fine of Rs.100/-
which shall be deposited with the learned Trial Court within 15
days failing which, it shall be realized by resorting to processes
of law . Accordingly, the appeal stands allowed as herein above.
V.K. SHALI, J
th
MARCH 19 , 2012
KP
Crl.A.No. 940/2011 Page 8 of 8
+ Crl. Appeal No. 940/2011
Date of Decision : 19.03.2012
D.D. A. ..... Appellant
Through: Mr. Rajesh Mahajan, Adv.
versus
VIP MARBLE EMPORIUM & ORS. ..... Respondents
Through: Mr. Vikram Singh, Adv.
CORAM :
HON’BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. This is an appeal filed by the appellant against the judgment
dated 07.04.2007 passed by Sh. A. K. Chaturvedi, the learned
Metropolitan Magistrate, New Delhi in complaint case titled M/s
DDA Vs. VIP Marble Emporium & Ors. acquitting the accused
company and its partners for an offence under Section 14 read
with Section 29(2) of the Delhi Development Act, 1957 for
misusing the premises contrary to the Master Plan/Zonal
Development Plan.
2. Briefly stated the facts of the case are that on 02.08.2001, an
inspection was conducted by Mr. S. C. Saxena, Junior Engineer,
Crl.A.No. 940/2011 Page 1 of 8
DDA whereupon accused Fayaz Ahmed and Shahdat Ali,
allegedly partners, were found putting to use the premises no.
372, Sultanpur, Main Mehrauli Gurgaon Road, Village Ghitorni,
New Delhi, for running a shop of marble emporium at the ground
floor under the name and style of M/s VIP Marble Emporium in
an area of about 500 sq. ft. The said premises according to the
appellant could have been used only for agricultural purpose or
as water body as per the Master Plan or Zonal Development
Plan. The appellant, in support of his case had examined two
witness, namely, Sh. S. C. Saxena, Junior Engineer, DDA as
CW1, who proved the Zonal Map as Exhibit CW1/B, Lay Out Plan
as Exhibit CW1/C, Show Cause Notice as Exhibit CW1/D,
Sanctioned Plan as Exhibit CW1/E, and Complaint as Exhibit CW
1/F, copy of the Resolution as Exhibit CW1/G-F1 and Gazette
Notification as Exhibit CW1/H-H1.
3. The second witness examined on behalf of the appellant was Mr.
S. K. Sharma, UDC, Sales Tax Department, New Delhi who
testified that the application dated 11.06.1999 for change of
address from 428/3, Swatantar Senani Market, Ghitorni to 372,
Sultanpur, Main Mehrauli Gurgaon Road, Village Ghitorni, New
Delhi was applied for by the respondent. Documents proved in
Crl.A.No. 940/2011 Page 2 of 8
this regard are Exhibit as CW2/A and copy of assessment order
as Exhibit CW 2/B-D. Thereafter, the appellant moved an
application under Section 311 Cr.P.C., CW-3 Sh. M.L. Ahuja, STO
was examined and he proved his earlier statement and
verification report dated 11.05.2004 Exhibit CW-3/DY. The
inspection was done on 11.05.2004 by the officials of the DDA
whereupon it was found that no business was being run at 372,
Sultanpur, Main Mehrauli Gurgaon Road, Village Ghitorni, New
Delhi. The statement of the accused was recorded and
thereafter the respondent-accused examined two witnesses
DW1/Kamaludin who stated that the shop of the
respondent/accused no. 1 was also at 372, Sultanpur, Main
Mehrauli Gurgaon Road, Village Ghitorni, New Delhi and the said
shop was functioning till about 3-4 months ago and it had been
lying sealed for the last four months. The witness was examined
on 05.02.2007. Similarly, DW-2/Fayaz Ahmed was also
examined by the accused persons to prove their defence that
they were not functioning from 372, Sultanpur, Main Mehrauli
Gurgaon Road, Village Ghitorni, New Delhi.
4. After hearing the arguments, the learned Magistrate acquitted
the respondents/accused persons by observing that the
Crl.A.No. 940/2011 Page 3 of 8
petitioner has failed to prove the guilt of the
respondents/accused beyond reasonable doubt. In this
regard, it referred to the testimony of CW-3/Mr. M. L. Ahuja,
STO who proved verification report as Exhibit CW-3/DY, which
was an inspection report by the DDA conducted on 11.05.2004
indicating that no marble shop was functioning on that date at
372, Sultanpur, Main Mehrauli Gurgaon Road, Village Ghitorni,
New Delhi. The learned Magistrate observed that CW-2 was
only a clerk while as CW-3 was a Sales Tax Officer, and thus, a
person of much higher rank, and accordingly, his testimony
carries more weight so as to make him believe that no marble
shop was functioning at the address given in question.
5. I have heard the learned counsel for the appellant as well as the
learned counsel for the respondent-accused and have also gone
through the record.
6. Mr. Rajesh Mahajan, the learned counsel for the appellant has
stated that the learned Magistrate has failed to appreciate the
fact that the verification report Exhibit as CW-3/DY approved by
CW-3 was a report with reference to the inspection dated
11.05.2004, while as the inspection, on the basis of which, the
respondents/accused were prosecuted was dated 02.08.2001. It
Crl.A.No. 940/2011 Page 4 of 8
was also contended by him that the learned Magistrate has
grossly erred by observing that since CW-3 is a Sales Tax Officer
is much superior in rank than that of DW-2, therefore, his
testimony carries more weightage. The learned counsel for the
respondents/accused could not refute this contention in any
manner, except it was contended that as on date no marble shop
is functioning at the address in question.
7. I have considered the submissions, made by the learned counsel
for the appellant and have gone through the record.
8. The learned Magistrate seems to have fallen into an error in
appreciating the evidence by observing that the verification
report exhibit as CW-3/DY was an inspection report conducted
on 11.05.2004 on which date admittedly no marble shop was
functioning at the address in question. That cannot make any
reasonable person to conclude that the shop was not in
existence on 02.08.2001. CW-1 is the Junior Engineer who has
specifically stated that on 02.08.2001, he had conducted the
inspection along with his team, of the premises in question and a
marble shop was found to be functioning from the said address.
This testimony has remained unshaken and there is absolutely
no reason as to why the government servant would
Crl.A.No. 940/2011 Page 5 of 8
testify falsely against the respondent/accused. It has also not
been the case of the respondent/accused that CW-1 had any
enmity to testify against them. The learned Magistrate seems
to have fallen into an error by observing that the testimony of
CW-3 is that of a Sales Tax Officer (hereinafter referred to as
‘STO’) while as the testimony of DW-1 is a junior level officer
and much below in rank to STO, and therefore, credence could
not be given to the same. The credence to the testimony of a
witness is not to be based on the post which he holds, a poor
person may be truthful as compared to a rich person or holder of
a higher post. There cannot be a generalization in this regard.
The reasoning adopted by the learned Magistrate is totally
erroneous. The truthfulness and the credence of the witness has
to be assessed by reading the entire testimony and the
examination-in-chief as well as the cross-examination of the
witness and then arrive at a conclusion as to whether his
testimony inspires confidence so as to believe in what he says.
In the instant case, I have gone through the testimony of CW-1
and I do not find any infirmity which will make me disbelieve
that he is deposing falsely against the respondents/accused that
they were running a marble shop. It is a different thing that in
Crl.A.No. 940/2011 Page 6 of 8
that area, there may have been other marble shops, but only
one marble shop has been booked for the purpose of being
prosecuted. But even then, this is not brought about in the
cross-examination, and consequently, the Court cannot venture
into conjecture and surmises in this regard. It was also
inappropriate on the part of the learned Magistrate to observe
that there is no independent corroboration to the testimony of
CW-1, and therefore, his testimony cannot be relied upon.
Admittedly, CW-1, is an official of a public body and there was
no reason to disbelieve the testimony of this person and
although having an independent corroboration would always
have been better, but in the absence of the same, it could not be
said that the testimony of CW-1 cannot be relied upon. I do not
subscribe to this kind of conclusion arrived at by the learned
Magistrate, and therefore, I feel that it is not in dispute that the
area in question can be used only for agricultural purpose or for
water body. In this regard, the appellant has proved necessary
plans to which the area can be put to use, therefore, the
judgment acquitting the respondents/accused, in my view, is
liable to be set aside being erroneous.
Crl.A.No. 940/2011 Page 7 of 8
9. I, accordingly, set aside the judgment dated 07.04.2007 and
hold the respondents/accused guilty of having violated Section
14 read with Section 29(2) of the Delhi Development Act, 1957.
Now comes the question of imposing sentence, I feel that the
matter is old one and the respondents/accused, admittedly, have
closed the marble shop w.e.f. 11.05.2005 which is proved by the
documents, exhibited as CW-3/DY by the appellant themselves
and a lenient view deserves to be taken to release all the
respondents/accused persons except the company after
admonition. So far as the company is concerned, though it
cannot be admonished, it is visited with a token fine of Rs.100/-
which shall be deposited with the learned Trial Court within 15
days failing which, it shall be realized by resorting to processes
of law . Accordingly, the appeal stands allowed as herein above.
V.K. SHALI, J
th
MARCH 19 , 2012
KP
Crl.A.No. 940/2011 Page 8 of 8