Delhi Development Authority vs Gautam Hospital and Another

Mukta Gupta, J.—By the present appeal, the Appellant challenges the judgment of the learned Metropolitan Magistrate acquitting the Respondents for commission of offence u/s 29(2) of the Delhi Development Act, 1957(in short the D.D. Act).

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.

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 515 and Karamjit Singh Vs. State (Delhi Administration), , 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 u/s 313 Code of Criminal Procedure 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.

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.

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 Vs. Indian Acrylic Limited, , 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.

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 Vs. State of Maharashtra and Others, , 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.

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.

As held by the Hon''ble Supreme Court in Tahir Vs. State (Delhi), :

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.

The Hon''ble Supreme Court in Ganpat Vs. State of Haryana and Others, 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.

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 the uncorroborated testimony of CW2. Thus, there is no illegality in the impugned judgment. The appeal is dismissed.