Delhi High Court

Delhi Development Authority vs M/S. Gautam Hospital & Anr. on 11 January, 2011

Author: Mukta Gupta

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      Crl. Appeal No. 134/1999
%                                           Reserved on: 1st November, 2010
                                            Decided on: 11th January , 2011

DELHI DEVELOPMENT AUTHORITY                   ..... Appellant
                Through:  Mr. Rajesh Mahajan, Advocate

                       versus

M/S. GAUTAM HOSPITAL & ANR.                   ..... Respondents
                  Through: Mr. P.S.Singal and Mr. Sushil Pandey,
                            Advocates.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                        Not necessary

2. To be referred to Reporter or not?                     Yes

3. Whether the judgment should be reported
   in the Digest?                                         Yes

MUKTA GUPTA, J.

1. By the present appeal, the Appellant challenges the judgment of the

learned Metropolitan Magistrate acquitting the Respondents for commission

of offence under Section 29 (2) of the Delhi Development Act, 1957(in short

the D.D. Act).

2. Briefly, the version of the Complainant CW-2 Shri R.K. Gupta, Junior

Engineer is that he inspected premises No.2, Kohat Enclave, Pitampura, Delhi

on 24th November, 1993 and found a nursing home functioning under the

name of M/s. Gautam Hospital in the basement in an area of 800 sq. ft. and on

the ground, first and second floors in an area of about 1800 sq. ft. each. This

premises fell under Development zone No.H-5 and could be used for

residential purposes only. On a complaint being filed, the Respondents

pleaded not guilty. After recording the Complainant's evidence, statements of

Respondent Nos. 2 and 3 and the defence evidence, the Respondents were

acquitted. The learned Trial Court acquitted the Respondents primarily on the

ground that during the inspection, the Complainant CW-2 neither seized any

document to prove the fact that a hospital was functioning on the date of

inspection nor could he give the name of any patient, nurse, staff member,

employee or associate doctor and thus for want of corroboration, the oral

testimony of this witness was found insufficient to convict the Respondents

for the offence charged.

3. Learned counsel for the Appellant contends that CW-2 Junior Engineer

inspected the premises and also exhibited the report of inspection Ex. CW2/A

demonstrating the area under violation. The Appellant examined CW-1

Subhash Chand from the Income Tax Department to prove the fact that M/s

Gautam Hospital was being run at the premises by a partnership firm

comprising of partners Sh. D.K. Sehgal and Smt. Veena Sehgal. According to

the learned counsel, the testimony of CW1 sufficiently corroborates the

testimony of CW2. Relying on Tahir v. State (Delhi), 1996 SCC (Cri) 515

and Karamjit Singh v. State (Delhi Administration), 2003 CRI.L.J. 2021, it is

contended that the testimony of an official witness can be relied upon for

conviction and no corroboration thereto is necessary. In the statements of the

Respondents recorded under Section 313 Cr.P.C. they have admitted the

factum of the firm running a poly clinic. Reliance is also placed on Section

32 of the DD Act to contend that the partners of the firm are also liable for the

offences committed by the firm. In view of the serious infirmities in the

impugned judgment, the same be set aside and the Respondents be convicted

or the offence charged with.

4. Learned counsel for the Respondents, on the other hand, contends that

there is no sanction granted by the competent authority against the

Respondent No.1 firm, hence, for lack of sanction neither the firm nor even its

partners can be prosecuted and convicted. The sanction is granted on a

cyclostyled proforma, wherein merely the blanks have been filled, which

depicts non-application of mind on the part of the sanctioning authority.

Hence, no cognizance could have been taken on the basis of such a sanction.

The documents exhibited by CW-2 were photocopies and thus reliance cannot

be placed on them and this objection was taken by the Respondents during the

trial itself. There being no infirmity in the impugned judgment, no

interference is called for in the present appeal.

5. I have heard learned counsels for the parties and perused the record.

The contention of the learned counsel for the Respondent to the extent that for

lack of sanction, Respondent No.1 i.e. M/s Gautam Hospital cannot be

prosecuted is well founded. A perusal of the sanction order, Ex. CW 3/A

shows that the sanction for prosecution has been granted only against

Respondent Nos. 2 and 3 i.e., Sh. D.K. Sehgal and Smt. Veena Sehgal. In the

absence of any sanction against Respondent No.1, it can neither be prosecuted

nor convicted. However, the next contention of the learned counsel that in the

absence of prosecution of the firm, the Respondent Nos. 2 and 3 cannot be

prosecuted, is meritless in view of the decision rendered by the Hon'ble

Supreme Court in Anil Hada v India Acrylic Limited AIR 2000 SC 145,

wherein it has been held as regards Sections 138 and 141 of the Negotiable

Instruments Act which are para materia Sections 29 and 32 of the DD Act that

there is no bar for prosecuting the Directors or persons responsible for day to

day affairs of the company in the absence of the company being prosecuted.

6. The contention of learned counsel for the Respondents that the sanction

is on the cyclostyle proforma and clearly depicts non-application of mind also

deserves to be rejected on the facts of the present case. In Shivaji Atmaji

Sawant v State of Maharashtra and Ors 1986 (2) SCC 112, it has been laid

down that merely because a cyclostyle proforma is filled, it does not lead to

the inference that there is no application of mind at the time of grant of

sanction. Each case has to be looked into on its particular facts. Going through

the sanction order, I find that individual details have been mentioned and the

sanctioning authority has duly applied its mind. The sanctioning authority

A.K. Barnwal, CW3 has appeared in the witness box and has stated about the

documents considered while granting sanction.

7. Despite the findings as above, the moot question which is required to be

answered in the present appeal is whether on facts, the Appellant has been

able to prove its case beyond reasonable doubt against the Respondent Nos. 2

and 3. In the present case, the Appellant has examined CW2 Sh. R.K. Gupta

Junior Engineer, who inspected the premises on 24th November, 1993. The

testimony of this witness shows that he carried out a very sketchy inspection.

Ex. CW1/C, the inspection report only mentions roughly the area under

misuse on each floor and that 20 persons were working there. Neither the

number of rooms used for admitting in patients, nor the number of patients,

nor their names, nor the names of the staff members, nurses, doctor etc. nor

the equipments available in the Hospital are mentioned. This witness has

admitted in his cross-examination that he only checked 2 or 3 rooms and there

were patients in the rooms. The inspection is also not backed by any

independent corroborative evidence as neither any document has been seized

nor has any photograph been taken nor any independent witness has been

associated with the inspection. The information booklet of Gautam Hospital

now placed with the appeal is of no consequence as the same has not been

proved during the trial and is not an exhibited document and thus cannot be

looked into. The evidence of CW1 Sh. Subhash Chand (Insp.), Income Tax

Department only shows that M/s Gautam Hospital, a partnership firm at

premises No. 2, Kohat Enclave, Pitampura, Delhi, was assessed for Income

Tax.

8. As held by the Hon'ble Supreme Court in Tahir vs. State, 1996 (3) SCC

338:

" No infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The rule of prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."

Thus, applying the rule of prudence, on a careful scrutiny of the

Complainant evidence, since the testimony of CW2 is bereft of the basic

details, no conviction can be based on this sole testimony.

9. The Hon'ble Supreme Court in Ganpat vs. State of Haryana, 2010 (10)

SCALE 237 has held that the Appellate Court ought to interfere in an appeal

against acquittal, if after marshalling the evidence on record, it comes to the

conclusion that the Trial Court has ignored material evidence or misread

material evidence or ignored statutory provisions. However, on appreciation

of evidence, if two views are possible then the view taken by the Trial Court

should not be reversed.

10. For the reasons stated above, I find that the learned Trial Court

committed no error in coming to the conclusion that it was unsafe to rely on