1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELATE JURISDICTION CRIMINAL APPEAL NO. 322 OF 1997 The State of Maharashtra .. Appellant Versus Dundappa M. Mathapati .. Respondent Mr. A. S. Shitole, AGP, for the Respondents­State None for the Respondent CORAM: MRS. MRIDULA BHATKAR, J. DATED:13th April, 2009 J U D G E M E N T 1. This appeal is preferred against the judgement and order dated 7.9.96 passed by the Judicial Magistrate, First class, Gadhinglaj. Dist. Kolhapur. 2. The accused was prosecuted for the offence punishable under Section 52 of Maharashtra Regional Town Planing Act (MRTP Act). The Junior Engineer of Municipal Council, Gadhinglaj detected unauthorised construction on Survey No.85/C, ad­ measuring 10.65 meters x 9.15 meters. Hence, he lodged a report against the accused and the accused was prosecuted under the relevant section of MRTP Act. The accused was acquitted of the offence punishable under section 52 of MRTP Act. Hence this Appeal. 3. The bailable warrant of sum of Rs.5000/­ returnable today (13.4.2009) was issued on 12th March, 2009. However, this 2 Court has not received any report from the Police. This Appeal is against the order of acquittal dated 7.9.1996. Hence, it was heard in the absence of the accused with the understanding that if Court finds it necessary to seek the attendance of the accused, then the appeal will be considered as part heard. 4. Leave to appeal was granted and the appeal was admitted on 16th February, 1998. Learned prosecutor, appearing for the State submitted that the learned Magistrate should have appreciated the evidence of Junior Engineer on the point of unauthorised construction . The Junior Engineer, in his evidence has categorically deposed that the Respondent accused had not obtained any permission for construction from the Municipal Council and the unauthorised construction which had been carried out belongs to the respondent accused. The learned Prosecutor has further submitted that prosecution has produced the assessment certificate showing the ownership of the accused. Learned Prosecutor prays that the impugned judgement and order passed by the JMFC be set aside and the accused be punished under Section 52 of MRTP Act. 5. The Junior Engineer, PW­1 has deposed that no permission was sought by the accused for construction. However, the assessment certificate which is produced by the prosecution disclosing ownership and use of the premises is not of the year 1989 but it is for the 1992­93. It is to be noted that once the Junior 3 Engineer visited the site on 7.8.89 and the report should disclose the status of the relevant date or period. It is binding on the prosecution to establish that on 7.8.1989 the accused was the owner and has carried out the construction illegally. Further, the prosecution has relied on 7/12 extract of Survey No.85/C. The said 7/12 extract is of 1995­96. It shows that the land was jointly owned by the accused along­with one Appasaheb Satgonda Patil. Thus, to prove the guilt of the accused, prosecution has to prove that its none but the accused has carried out the unauthorised construction. Learned Trial Judge has rightly appreciated the evidence that the prosecution has failed to establish the strict proof of the fact. Moreover, it was possible for the prosecution to place the documents on record showing initiation of the civil action i.e. demolition of unathlorised construction under the Municipal Act, which is expected to be entailed. Under such circumstances, the Appeal is dismissed. ( MRIDULA BHATKAR, J.) jpc/­