((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1551 OF 2008 Mumbai Municipal Corporation Applicant versus Rajendraprasad Malchandra Jain and another Respondents WITH CRIMINAL APPLICATION NO.1552 OF 2008 Mumbai Municipal Corporation Applicant versus Mahesh Ramdas Kanani Respondent WITH CRIMINAL APPLICATION NO.1553 OF 2008 Mumbai Municipal Corporation Applicant versus Piyushkumar L. Khemka and anr. Respondents WITH CRIMINAL APPLICATION NO.1554 OF 2008 Mumbai Municipal Corporation Applicant versus Kumar Nayandas Mirpuri Respondent WITH CRIMINAL APPLICATION NO.1555 OF 2008 Mumbai Municipal Corporation Applicant versus Sachin Lalit Bajla Respondent WITH CRIMINAL APPLICATION NO.1556 OF 2008 Mumbai Municipal Corporation Applicant versus Ramniwas B. Maheshwari & anr. Respondent WITH CRIMINAL APPLICATION NO.1557 OF 2008 Mumbai Municipal Corporation Applicant ((-2-)) versus Yogesh Vasantraj Doshi & anr. Respondent WITH CRIMINAL APPLICATION NO.1558 OF 2008 Mumbai Municipal Corporation Applicant versus Harish Pravin Sanghavi & anr. Respondent WITH CRIMINAL APPLICATION NO.1559 OF 2008 Mumbai Municipal Corporation Applicant versus Arunkumar Anaram Agarwal & anr. Respondent WITH CRIMINAL APPLICATION NO.1560 OF 2008 Mumbai Municipal Corporation Applicant versus Sureshkumar Ratanchand Sacheti and anr. Respondent Mrs.Teja Katdare i/by S.H.Ujjainwala & Uday Kedar for applicant in Application Nos.1551/2008, 1555/2008, 1557/2008, 1558/2008, 1559/2008, 1560/2008. Niranjan Mundargi i/by Indian Law Alliance for respondent. Y.S.Shinde, APP for State. Teja Katdare i/by S.M.Ujjainwala & Uday Kedar for applicants in Criminal Application Nos.1552/2008, 1553/2008 and 1556/2008. Jahangir Khojotia with Niranjan Amin i/by M/s.Amin & Co. for respondent. Y.S.Shinde, APP fior State. Teja Katdare for applicant in Application No.1554/2008. Y.S.Shinde, APP for State. CORAM : A.S.OKA, J. DATE : 12th March 2009 PC : ((-3-)) 1. Heard learned counsel for the applicant. These are the applications under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. The facts of all these applications are admittedly similar. Therefore, reference has been made in this order to the facts of the case in Criminal Application No.1551 of 2008. The applicant Mumbai Municipal Corporation (hereinafter referred to as "BMC" for short) filed a private complaint alleging commission of on offence under section 353A read with section 471 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as "the said Act of 1888"). The case made out by the applicant is that the first respondent-accused entered the possession of residential premises/flat in buildings on Plot No.9 Worli Scheme No.58, Dr.B.G.Kher Marg, Worli, Mumbai without obtaining occupation certificate from the applicant. The Trial Court convicted the first respondent and other accused in the complaints. The appeals were preferred by the first respondent and other accused. The Sessions Court has passed the impugned order of acquittal. ((-4-)) 2. The learned counsel for the appellant submitted that construction of the buildings which are occupied by the accused in these cases is completely unauthorised. She pointed out that the learned Additional Sessions Judge has proceeded on erroneous assumption that the construction has been regularized. She submitted that this was a case where none of the accused have contended that they occupied the flats on representation that the occupation certificate was already granted. Her submission is that there was material placed on record to show that an action was taken by the applicant BMC against the persons who constructed the buildings. She submitted that this was a case where the accused had entered possession of the respective flats with full knowledge that the buildings had no occupation certificate. She submitted that this is not a case where only the flat purchasers have been chosen, but the action has been taken against all concerned. She submitted that the learned Trial Judge has rightly recorded a finding that the decision of this Court in the case of Municipal Corporation of City of Pune Vs. Dinanath Dattatraya Borkar (1978-Cri.L.J.-1439) is not applicable to the facts of the case. ((-5-)) She submitted that this Court was dealing with a case where on representation made to the flat purchasers they occupied the respective premises. 3. I have given careful consideration to the submissions. It will be necessary to refer to the relevant provisions of said Act of 1888. The applicant has alleged violation of sub section 2 of section 353-A which reads thus:- "353A. Completion certificates : Permission to occupy or use :- (1) ... ... (2) No person shall occupy or permit to be occupied any such building, or use or permit to be used the building or part thereof affected by any such work, until- (a) the permission referred to in proviso (b) to sub-section (1) has been received, or (b) the Commissioner has failed for twenty-one days after receipt of the notice of completion to intimate as aforesaid his refusal of the said permission." The violation of the said provision has been made an offence by virtue of provision of section 471 of the said Act, 1888. Section 471 reads thus :- "471. Certain offences punishable with fine :- ((-6-)) Whoever - (a) contravenes any provision of any of the sections, sub-sections or clauses mentioned in the first column of the following table, or of any regulation made thereunder; or (b) fails to comply with any requisition lawfully made upon him under any of the said sections, sub-sections or clauses, shall be punished, for each such offence, with fine which may extend to the amount mentioned in that behalf in the third column of the said table, subject however, to a minimum fine which shall not be less than fine mentioned in the fourth column of the said table." 4. On plain reading of section 471 it refers to a contravention of any of the sections of the said Act of 1888. A mere breach or failure to comply is not made an offence. 5. It will be necessary to refer to the decision of this Court in the case of Municipal Corporation of City of Pune (supra). This Court was dealing with the violation of sub section 2 of section 263 of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the said Act of 1948). Sub section 2 of section 263 of the said Act of 1949 and sub section 2 of section 353A of the said Act of 1888 are almost identical. Before this Court, the offence was ((-7-)) alleged under section 392 of the said Act of 1949 which provides that the contravention of provisions of any section under the said Act of 1949 is an offence. It is true that in the facts of the case before this Court, the case made out by the accused was that a representation was made that occupation certificate has been granted. Paragraph 27 of the said decision reads thus :- "In In In my view, therefore, the state of mind my view, therefore, the state of mind my view, therefore, the state of mind of of of the accused would also be a material the accused would also be a material the accused would also be a material factor actor actor to be considered in such cases. to be considered in such cases. to be considered in such cases. It appears to me that to take such a view would not exonerate persons who are really responsible for obtaining completion certificate before allowing the same to be occupied either by themselves or by others and at the same time it will not work hardship to the persons who simply occupy such a building through others, because it would always be possible to hold the person, who is in charge of the building, responsible for permitting other persons to occupy the same or for occupying it himself. It, therefore, appears to me that the order of acquittal must be confirmed." (Emphasis added) What has been held by this Court is that for the offence of contravention of sub section 2 of section 263 of the said Act of 1949, the existence of mens rea is a relevant consideration. There is no reason why the ratio of the said decision should not be applied to the present case where contravention ((-8-)) of similar section under the said Act of 1888 has been alleged. 6. Deposition of Sub Engineer of building proposals department of the applicant corporation is placed on record. He deposed that on 24th February 2000 there were seven buildings existing to on plot no. 9 Worli Scheme No.58, Dr.B.G.Kher Marg, Worli, Mumbai. He submitted that he visited each and every flat of the buildings and noted down the names of the occupiers. He stated that as the buildings were not having occupation certificate, he submitted an inspection report on the basis of which notices under section 353 of the said Act of 1888 were issued to the occupiers. He stated that on 17th April 2000 he found that some occupiers were occupying the said buildings and none of them had vacated. He stated that he was not aware whether all the occupiers who were in occupation of the buildings were from constructed buildings. In the cross examination he admitted that the persons who prepared the plan and constructed the buildings are not made accused in the present case but previously they were accused in the case filed under section 353A of the ((-9-)) said Act of 1888. He stated that for the present he was not aware about the details of the said case. 7. In the cross examination he further stated that construction of the buildings or the flats was was completed in the year 1997. In the further cross examination he stated that a stop work notice under section 354A was issued by the applicant Corporation to the constituted attorney of the owner of the property. In the further cross examination he admitted that the notice under section 353A was issued only to the occupants and not to the owner, builder and promoter of the building. He stated that it was the duty of the owner, builder and promoter of the building to get the building completion certificate. In the last part of the cross examination he admitted that he was not submitting any documents regarding previous action taken against the occupants of the building. 8. In the entire deposition a case is not at all made out that the accused had taken possession of the respective flats with the knowledge that the occupation certificate was ((-10-)) not issued. As stated earlier, it is not even the case of the applicant that any of the accused were responsible for constructing the building or were responsible for obtaining the occupation certificate. 9. The finding of fact recorded by the learned Additional Sessions Judge is that there was absence of mens rea. The learned Judge observed that mens rea could not be established by the applicant. 10. If evidence of the officer examined by the applicant is perused, it is obvious that the finding recorded by the learned Additional Sessions Judge that the case of the applicant is not established is certainly a possible finding which could have been recorded on the basis of evidence on record. Even if submissions of the counsel for the applicant are accepted, at highest what can be stated is that there are two views possible, one in favour of the accused and the other in favour of the complainant-accused. The settled law is that if two views are possible, one in favour of the accused has to be preferred. In any case, the presumption of innocence is further ((-11-)) strengthened by an order of acquittal. 11. Hence, no case is made out for grant of leave. The applications are rejected. It must be clarified that no adjudication is made by this Court as regards legality and validity of the construction of the buildings and alleged right claimed by the accused to occupy the flats in the building. It is made clear that all pending proceedings regarding the suit flats will be decided on its own merits. It is also made clear that this order will not prevent the applicant Corporation from taking appropriate legal action as regards alleged illegality in construction of the buildings. The observations made in this order are only for limited purposes of ascertaining whether a case is made out for grant of leave to appeal. (A.S.OKA, J.)