The Municipal Corporation of Gr.Bombay. Vs Uttamlal Fulchand Vakharia and Anr.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO.657 OF 1995

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 The Municipal Corporation ]
 of Greater Bombay ]..Appellant
 (Ori.Complainants)

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 Versus

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 1. Shri.Uttamlal Fulchand ]
 Vakharia M/s. Vakharia ]
 Metal Industries, ]
 Deochand Nagar, ]
 Maji Bapu Road, Malad (E) ]
 Bombay-400097 ]..Respondent
 (Ori.Accused)
 2. State of Maharashtra ]..Respondent

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 Mr.H.C.Pimple, Advocate for the
 Appellant
 Mr.A.S.Shitole, A.P.P. for the State.
 None for Respondent no.1.

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 CORAM: SMT.V.K.TAHILRAMANI,J.

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 DATE : DECEMBER 1,2004

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ORAL JUDGMENT:

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 1. Through this appeal, the appellant i.e. Bombay
 Municipal Corporation has challenged the judgment
 and order dated 5th April, 1989 passed by the
 learned Metropolitan Magistrate, 39th Court, Vile
 Parle, Mumbai in Case No. 360/MH/1983. By the said
 judgment and order, the learned Magistrate acquitted

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 the respondent no.1 i.e. original accused under
 Section 390 read with Section 471 of the Bombay
 Municipal Corporation Act. (In short ‘B.M.C.Act’).

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 2. Briefly stated the prosecution case is as under:

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 . That on 17th January, 1983 at Devchand Nagar,
 Haji Babu Road, Malad (E) Bombay, the factory M/s.
 Vakharia Metal Industries was working without valid
 permit as required under Section 390 of B.M.C.Act.
 Hence, the complaint came to be filed against the
 respondent no.1-accused.

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 3. The particulars of the offence under section 390
 read with Section 471 of B.M.C.Act were explained to
 the accused. He pleaded not guilty and claimed to
 be tried.

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 4. The defence of the accused is that he was having
 valid permit as required under Section 390 of
 B.M.C.Act and before expiry of said permit, he filed
 an application for renewal of the permit but B.M.C.
 did not renew the permit without any just reason and
 illegally demanded Rs.1,000/- which was not paid.
 The further defence of the accused is that the
 factory is pre-merger factory and it was established
 in the year when the area of Malad was not included

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 in the area of B.M.C.

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 5. I have heard Mr.H.C.Pimpale, learned advocate
 for the appellant and Mr.A.S.Shitole, the learned
 A.P.P. for the State. None appears for the
 respondent no.1 though served. I have also perused
 the record pertaining to the present case. After
 carefully considering the matter, I am of the
 opinion that this appeal deserves to be dismissed.

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 6. The prosecution has examined three witnesses in
 support of its case. P.W.1 Pratap Baburao Parab was
 a Junior Engineer in B.M.C. at the relevant time.
 It has come in the evidence on record that till the
 date of the offence, B.M.C. did not revoke or
 suspend the permit granted to the accused under
 Section 390 of B.M.C.Act. In such case, it cannot
 be said that on 17th January, 1983 the factory was
 being run without a valid permit under Section 390
 of the B.M.C.Act. It is obvious that till the
 permit is revoked or suspended by the competent
 authority, the licensee need not cease to do the
 trade. On behalf of the accused, reliance is placed
 on the decision in Criminal Appeal No. 594 of 1972
 in which the Full Bench of this Court dealt with the
 point relating to pre-merger factories with
 reference to Section 390(1) of B.M.C.Act and decided

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 the same. In the said matter, the A.G.P. stated
 that B.M.C. is willing to withdraw all prosecutions
 pending under Sections 340 read with Section 471 and
 472 of B.M.C.Act in case of pre-merger factories.
 It is an admitted fact that on 17th January, 1983
 the premises where the factory was situated, was not
 included in the area of Bombay Municipal
 Corporation.

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 7. Now I shall proceed to deal with the evidence of
 Sub-Engineer P.W.1 Pratap Parab. Shri.Parab deposed
 before the Court that on 17thJanuary, 1983 when he
 visited the factory premises, the said factory was
 working without permit under Section 390 of
 B.M.C.Act. In his cross-examination, this witness
 has admitted that he did not have the authority for
 inspection. He has also admitted that the factory
 was having a permit under Section 390 of B.M.C.Act.
 He has also admitted that it is a pre-merger
 factory. P.W.1 Pratap Parab is the star witness in
 this case on whose inspection, the case was built
 up. From the evidence of P.W.1 Pratap Parab, it is
 evident that no authority was produced by P.W.1
 during the course of his evidence under Section 390
 or 488 of the B.M.C.Act. This witness has admitted
 in his cross-examination that the permit of the
 accused was not revoked by B.M.C. and it was only

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 now that the show cause notice was given to the
 accused as to why his permit could not revoked.
 From the testimony of P.W.1 Pratap Parab, it becomes
 clear that the permit of the accused under Section
 390 of the B.M.C.Act was never revoked nor suspended
 by B.M.C. at any point of time. The fact that a
 renewal application was made by the accused was also
 admitted by P.W.1 Pratap Parab.

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 8. From the evidence of P.W.1 Pratap Parab who
 inspected the factory on 17th January, 1983, it is
 evident that P.W.1 Pratap Parab had no authority
 under Section 390 of B.M.C.Act. P.W.1 Pratap Parab
 was accompanied by P.W.2 Shri.B.N.Desai,
 Sub-Engineer, Vigilance Department. P.W.2 Desai
 corroborates the version of P.W.1 Pratap Parab
 regarding inspection of the factory on 17th January,
 1983. It is on the basis of the inspection report
 prepared by P.W.1 Pratap Parab, Offencesheet
 Exhibit-B was prepared. Though P.W.1 Pratap Parab
 says that he is authorised to do the inspection,
 however, he did not file his authority on record.
 In view of this and the other evidence which has
 come on record, the view taken by the learned
 Magistrate that the inspection by P.W.1 Pratap Parab
 is not permitted by law and hence, it cannot be
 looked into cannot be said to be totally erroneous.

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 Similarly the view of the learned Magistrate that
 report Exhibit-8 which was prepared on the basis of
 inspection also cannot be looked into and hence,
 this fact is also fatal to the prosecution, is a
 reasonable view.

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 9. The learned Magistrate has given plausible
 reasons for acquittal in the impugned judgment. It
 is well settled that if the view of acquittal could
 have been reasonably arrived at, then the mere
 circumstance that the appellate Court would have
 taken a different view, would be no ground to
 interfere. In this connection, there is no dearth
 of authorities. To eschew prolixity, I am only

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 referring to two of them i.e. A.I.R. 1971 S.C. 66
(Khedu Mohton Vs. State of Bihar) and (2003) 1
S.C.C. 1 (C.Anthony Vs. K.G.Raghavan Nair). In
 the case of C.Anthony, the Supreme Court has
 observed that unless findings of the trial Court are
 perverse or contrary to the material on record, the
 High Court cannot in appeal, substitute its findings
 merely because other contrary opinion was possible
 on the basis of the material on record. In my view,
 the view of acquittal was a reasonable and possible
 view.

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 10. In the circumstances, I find no merit in this
 appeal and the same is dismissed. The judgment and
 order of acquittal passed by learned Metropolitan

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 Magistrate, 39th Court, Vile Parle, Bombay in Case
 No. 360/MH/1983, is confirmed. The bail bonds of
 the accused shall stand cancelled.

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 [SMT.V.K.TAHILRAMANI,J.]

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 FARAD CONTINUATION SHEET
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 APPELLATE SIDE
CRIMINAL APPEAL NO. 657 OF 1995
 (The Municipal Corporation of Gr.Bombay Vs. Shri.U.L.Vakharia
 and another)
 -----------------------------------------------------------------
 Office Notes, office Court’s or Judge’s orders
 Memoranda of Coram,
 appearances, Court’s
 orders or directions
 and Registrar’s orders

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 -----------------------------------------------------------------

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 Mr.H.C.Pimple
 Advocate for Appellant
 Mr.A.S.Shitole, A.P.P. for State
 No.2
 None for respondent no.1

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 CORAM: SMT.V.K.TAHILRAMANI,J.

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 DATE : DECEMBER 1, 2004

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 . For the reasons mentioned
 separately in the judgment, the
 following order is passed:

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 . The appeal is dismissed. The
 judgment and order of acquittal
 passed by learned Metropolitan
 Magistrate, 39th Court, Vile Parle,
 Bombay in Case No. 360/MH/1983 is
 confirmed. The bail bonds of the
 accused shall stand cancelled.

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 (V.K.TAHILRAMANI,J.)

The Municipal Corporation of Gr.Bombay. v. Uttamlal Fulchand Vakharia and Anr.

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The Municipal Corporation of Gr.Bombay. v. Uttamlal Fulchand Vakharia and Anr.

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