* 1 * Cri.Appln.857.2011 25.8.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 857 OF 2011 [FOR LEAVE TO APPEAL] Mumbai Municipal Corporation ....Applicant/ Orig.Complainant V/S. Mr. S.S. Philips and Ors. ....Respondents/ Orig.Accused Mrs. Teja Katdare, i/by. Mr. V.K. Khatu, Advocate for the applicant. Mrs. G.P. Mulekar, APP for the State-respondent. CORAM :- Smt. R.P. SondurBaldota, J. 25th August, 2011. P.C. :- 1. This is an application by the Mumbai Municipal Corporation for leave to appeal against the judgment and order dated 20th April, 2009 passed by the Court of Metropolitan Magistrate, 39th Court, Vile Parle, Mumbai acquitting respondents no.1 and 2 of the offence punishable under Section 381(1) punishable under Section 471 of the Mumbai Municipal Corporation Act. 2. The complainants (P.W.2 and P.W.3) are the residents of Flat No. 502 B’ Wing situate in the building of respondent no.2-Society. They ‘ * 2 * Cri.Appln.857.2011 25.8.2011 had complained of leakage from outside into their flat. Therefore, the Junior Engineer of the applicant (P.W.1) had visited the premises and observed that there was a crack in the inner side of the wall and the colour of the wall had fallen. He also observed that there was leakage in the flat from outside. Accordingly, he prepared his inspection report and based upon that inspection report, notice (Exhibit-9) under Section 389 of the Mumbai Municipal Corporation Act calling upon respondents no.1 and 2 to abate the nuisance was issued. It is alleged that when P.W.1 visited the flat on 24th May, 2006 he found that respondents no.1 and 2 had failed to comply with the requisition in the notice. Therefore, respondents no.1 and 2 were sought to be prosecuted in Criminal Case No. 7935/SS/2006. 3. The trial Court found that the letter of authority for inspection issued in favour of P.W.1 relied upon by the prosecution was defective. The observations of the trial Court in respect thereof at paragraph-8 of the judgment and order read as follows :- 8. “ Perusal of the authority letter (Exhibit-P.6) in favour of the said witness P.W.1 Mr. Chavan would disclose that he is authorized under Section 488 of M.M.C. Act only for limited purposes to enter into or upon any building for the purpose of exercising or discharging the powers and duties for sections quoted in that authority letter. It further discloses about his power under Section 488 of M.M.C. Act only for the purpose of Section 381(1) to detect any kind of nuisance appears to be totally silent in that Authority letter. It appears that the * 3 * Cri.Appln.857.2011 25.8.2011 powers of the said witness by that authority letter under Section 488 of M.M.C. Act are circumscribed only to the extent of the provisions enumerated in that authority letter. As such the Inspection reports (Exhibit-P.8 and P.12) are without authority and baseless. Inview of this, I find that the notice (Exhibit.P-9) u/Sec.381 of M.M.C. Act calling upon the accused to abate the alleged nuisance is baseless. Therefore, the report (Exh.P-12) alleging non-compliance of that notice is also baseless. Considering this aspect of the matter, I find that the entire prosecution stands vitiated.” 4. I have perused the letter of authority (Exhibit-P.6) produced by the learned counsel for the applicant. The observations of the trial Court stand justified by the letter of authority. Since the letter of authority which is the genesis of the prosecution, itself is defective, the learned Magistrate has rightly acquitted respondents no.1 and 2. As such, there is no merit in the appeal. The application for leave to appeal is therefore rejected. [SMT. R.P. SONDURBALDOTA, J]