Municipal Corporation Of Delhi vs Suraj Parkash
2014 Latest Caselaw 1391 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+     CRL.A. 711/2000

%                                            Date of decision: March 14th , 2014


MUNICIPAL CORPORATION OF DELHI                      ..... Petitioner
                 Through: Mr. Mukesh Gupta, St. Counsel for EDMC.

                          versus

SURAJ PARKASH                                                    ..... Respondent
                          Through: None.

CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J.

1. This is an appeal under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') challenging the order dated 5.9.1995 whereby the respondent has been acquitted.

2. Briefly, the facts relevant for the disposal of present appeal are as under:-

The complainant i.e. MCD lodged a complaint under Section 332/461 of Delhi Municipal Act, 1957 (hereinafter referred to as 'the Act') against the respondent alleging therein that on 28.11.1989 at about 11.15 a.m. the Junior Engineer of petitioner found the respondent getting construction of one hall at

second floor and one hall at third floor and staircase in premises No.B-1, Veer Sarvarkar Block, Vikas Marg Road, Shahdara, Delhi without the permission of Commissioner, MCD. The respondent was summoned by the ld.M.M. He was supplied with copies of the entire record. The notice under Section 251 of the Code was served upon him to which he pleaded not guilty and claimed trial. Thereafter, the case was listed for prosecution evidence wherein 7 witnesses were examined. The statement of respondent under Section 313 Cr.P.C. was recorded wherein he denied incriminating evidence against him. No evidence was given in defence. After hearing the counsel for parties and considering the material on record, learned MM held that the prosecution has failed to prove the visit of its witnesses at the site or that the respondent was raising unauthorized construction as was alleged. It has further been held that respondent was challaned as owner of property but the witnesses of the prosecution has failed to prove the ownership of premises in question in the name of respondent/accused. Accordingly, the respondent was acquitted of the charges under Section 332/461 IPC.

3. The aforesaid acquittal order has been challenged before this court. The leave to appeal was granted on 15.11.2002.

4. Learned counsel for petitioner has submitted that the evidence on record clearly establishes that Shri Devinder Singh, JE, MCD (PW-3), Shri Lal Singh, Belder, MCD (PW-6) and Shri Asha Ram, Belder, MCD (PW-7) had visited the site in question. It is also submitted that evidence on record also establishes

that the unauthorized construction was being carried out by the respondent. It is submitted that the findings given by the learned MM are not based on evidence on record.

5. No one has appeared on behalf of the respondent to assist the court. Accordingly, the ld.counsel for the petitioner has been heard. I have also gone through the evidence on record.

6. The parameters of appreciation of evidence on record while dealing with order of acquittal have been laid down in various judgments of the Supreme Court. The parameters laid down are that appellate court can review the evidence and interfere with the order of acquittal only if the approach of lower court is vitiated by some manifest illegally or the decision is perverse and the court has committed a manifest error of law and ignored the material evidence on record. Mere possibility of two views would not be ground for appellate court to take the view which would upset the decision of the court below. Reference is made to (i) Tota Singh vs. State of Punjab: (1987) 2 SCC 529 and

(ii) State of Goa v. Sanjay Thakran & anr and other connected matter; (2007) 3 SCC 715.

7. The evidence has been examined in the back drop of above legal position.

8. The respondent has been challaned as a owner of the property. Sh. R.C. Khandelwal from House-Tax Department PW4 has deposed that as per the record available with the Department, the owner of the property in question i.e.

property No.B-1 Block, Veer Sarvakar Block, Vikas Marg, Delhi is Mr.Sitambar Lal. He has also deposed that there is no document available on record to show that the respondent had purchased the property in question. No other evidence has been led to prove that the ownership of the premises is in the name of the respondent. As per the case of the appellant, the inspection was carried out by Sh.Deveinder Singh, JE, PW-3 in the presence of Sh.Lal Singh, Beldar, PW-6 and Sh.Asha Ram, Beldar, PW-7 on 28.11.1989 about 11.15 am by visiting the property in question. There are serious contradictions in the evidence of PW-3 and that of PW-6 and PW-7 in this regard. They have given different versions on vital aspects of the matter. Shri Devender Singh, JE, PW-3 has deposed that he had gone to the property in question accompanied by Shri Lal Singh, Belder, PW-6 and Sh.Asha Ram, Belder, PW- 7 in a municipal vehicle. Shri Lal Singh, PW-6 has stated that he went on a bicycle while other two came on a two wheeler scooter. Asha Ram, PW-7 has stated that he reached the site i.e. property in question directly from his residence as he lived nearby to the premises. Even in the evidence of the aforesaid PWs, different versions have come about quantum of construction being carried out at the property in question. The aforesaid PWs have also given different versions where the respondent is alleged to have met them at the site. Even timings of arrival at the property in question are stated to be different. The contradictions stated are serious in nature and go to the root of the matter and reading the evidence of aforesaid PWs, it cannot be said that the aforesaid witnesses visited the property in question or that they had found respondent raising unauthorized construction as is alleged. The respondent in

his statement under Section 313 Cr.P.C. denied having raised any unauthorized construction.

9. Ld.M.M. has also observed that PW-6 is not a believable witness. He has deposed that on 28.11.1989 he had not visited any other property/site on that day. However, he had appeared as a witness before the Ld. M.M. in another case titled MCD vs. Shiv Shankar wherein he deposed having visited another site with JE Rajesh Kumar i.e., B-120/A at Shakar Pur, Delhi and signed prosecution report therein (Ex. PW 1/A) on 28.11.1989 at 10.50 am. Ld.M.M. has noted that Shri Asha Singh, PW-7 has stated that they remained at the property in question for 15-20 minutes and thereafter Shri Lal Singh PW-6 had gone with him to other site i.e., site in respect of case of MCD vs. Shiv Shankar. According to him, they had reached the site of another case i.e. MCD v. Shiv Shankar at 12 noon. In that case, Sh.Asha Singh, PW-7 has deposed having reached at 10.50 am i.e., prior to the visit of this case. In the present case, he has deposed that he had directly come to the site with Shri Devender Singh, PW-3. Considering the contradictory statements made by them, learned M.M. has rightly observed that Sh.Lal Singh, PW-6 and Sh.Asha Ram, PW-7 are not reliable witnesses.

10. In view of the evidence on record, it is not established that the respondent was the owner of the property in question and was getting done the unauthorized construction as is alleged in the complaint. The learned MM has rightly acquitted him. There is no reason to interfere with the impugned

judgment of acquittal.

The appeal stands dismissed.

VEENA BIRBAL, J MARCH 14, 2014 kks