1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2680 OF 2010 WITH CRIMINAL APPLICATION NO.2677 OF 2010 IN CRIMINAL APPEAL ST. NO. 237 OF 2010 Ramkrishna S/o Venkatnarsaih ..APPLICANT -VERSUS- Ramrao Birajdar and another ..RESPONDENTS ....... Mr. Arvind Deshmukh, advocate for applicant Mr. U.B. Bilolikar, advocate for respondent no.1 ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 1 st October, 2010. PER COURT : 1. Heard. 2. There is delay of 15 days appears to have been caused in filing appeal. For the reasons stated in the application, the delay is condoned. 3. So far as the application for seeking leave to file appeal is concerned, it is necessary to examine whether the impugned judgment dated 22.04.2010, rendered in S.C.C. No. 167/2007 by the learned Judicial Magistrate (F.C.), Dharmabad can 2 be prima facie regarded as perverse. 4. The applicant is the original complainant and it is alleged that the respondents had facilitated drifting of flown water in an open space which would cause spreading of infectious diseases. It was alleged that the act of the respondents amounted to nuisance, and therefore, they committed the offence punishable under Sections 269 and 270 of the Indian Penal Code. 5. It appears that the respondent no.2 was deleted from the array of the accused before passing the impugned judgment but no challenge was made to such discharge order. The applicant did not file Revision Application against the discharge order. The learned Advocate for the applicants submits that the respondent no.2 could not have been discharged and such question can be agitated in the present appeal. On perusal of the impugned judgment, it appears that there was a solitary statement of the applicant to show that the flow of drainage water was left open at the outlet in an open space, and therefore, there was likelihood of spreading of diseases due to water pollution. He examined P.W. 2 Shaikh Maheboob in support of his complaint. The statement of P.W. Shiakh Maheboob purports to show that he had noticed that dirty water was let-out in the open space. The question is whether, 3 the respondent no.1 intentionally spreads out infectious diseases by his act. No tangible evidence is appeared to infer that the flow of water could cause spreading of infectious diseases. The role attributed to the respondent no.2 is that of in action i.e. act of omission to take proper steps. It appears that the complaint was filed as a sequel to the civil dispute. The impugned judgment of the trial Court can not be branded as perverse in view of the nature of evidence tendered in the summary case. Consequently, the leave is refused. The applications are disposed of. (V.R.KINGAONKAR) JUDGE gas/cri2680.10