D.D. A. vs Vip Marble Emporium & Ors.
2012 Latest Caselaw 1856 Del

*             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,

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

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

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

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

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

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.

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

MARCH 19th, 2012 KP