Mcd vs Ms. Kamlesh
2008 Latest Caselaw 1085 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                          Crl . Appeal No. 20/1994

%                                 DATE OF DECISION : 21st JULY, 2008

      MCD                                        ..... Petitioner
                           Through:   Ms. Maninder Acharya, Advocate

                  versus


      MS. KAMLESH                               ..... Respondents
                           Through: None.

CORAM:

HON'BLE MR. JUSTICE MANMOHAN

1. Whether Reporters of local papers may
   be allowed to see the judgment?
2. To be referred to the Reporter or not?                             Yes
3. Whether the judgment should be reported in the digest?             Yes


                           JUDGMENT

MANMOHAN, J: (ORAL)

1. The Appellant/Complainant has filed the present appeal under Section

378 (4) of the Code of Criminal Procedure against the acquittal order dated

10th August, 1993 passed by Shri R.S. Arya, Metropolitan Magistrate, Delhi.

2. According to the Appellant/Complainant, the accused was found

raising unauthorized construction of two shops, four rooms, stair case and

passage at the ground floor in premises No.313, Thana Road, Village

Shalimar, Delhi without the prior permission of the MCD Commissioner.

Consequently, according to the Appellant/Complainant, the accused has

committed an offence punishable under Section 332 of the Delhi Municipal

Corporation Act in her capacity as owner/builder of the said property.

3. The learned MM in his impugned acquittal order has given as many

seven reasons to reach the conclusion that the prosecution's case is not free

from shadow of reasonable doubt. The learned MM has not only pointed out

to discrepancy in the evidence of the MCD officers but also the fact that the

recommendatory note for prosecution as well as the order sanctioning

prosecution had been signed by the officials in a mechanical manner without

application of mind.

4. But in my opinion the most important reason given by the learned

MM for acquitting the accused is that the Appellant/Complainant failed to

conclusively establish that the accused was the owner of the property in

which the alleged unauthorized construction was carried out. The accused

through DW-1 had placed on record a Ration Card of her husband which

clearly showed that she was a resident of Sarai Pipal Thala 193, in contrast

to the property at Shalimar Bag in which the alleged unauthorized

construction was being carried out. It is pertinent to mention that during the

relevant period admittedly properties in Shalimar Village were not assigned

any municipal number and therefore, also it cannot be held beyond doubt

that the accused was the owner of the property in which alleged

unauthorized construction was being carried out.

5. Ms. Acharya has drawn my attention to the evidence of DW-1/ Shri

C.S. Rawat, LDC from Food and Supply Department wherein the said

witness has deposed that he could not specifically state the date on which the

said Ration Card relied upon by the accused had been issued as the relevant

column was blank. However, in my opinion this would make no difference

as it was for the Appellant/Complainant to prove its case beyond any

reasonable doubt.

6. Consequently, the present appeal being devoid of merits is dismissed.

MANMOHAN, J JULY 21, 2008 rb