- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.1901 OF 2006 APPLICATION NO.1901 OF 2006 APPLICATION NO.1901 OF 2006 Municipal Corporation of Greater Bombay ...Applicant vs. Naresh Kale and others ...Respondents Mrs.A.N.Pathan i/b Mr.S.H.Ujjainwala and others for applicant Ms A.T.Javeri A.P.P. for State Mr.Manish Upadhye for Respondent no.2. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 4,2009 : APRIL 4,2009 : APRIL 4,2009 P.C.: P.C.: P.C.: 1. Heard learned Advocate for the applicant. The applicant filed a private complaint against 1st and 2nd respondents alleging violation of section 381-A of the Mumbai Municipal Corporation Act,1888 which is made punishable under section 471 of the said Act,1888. The first respondent (1st accused) is stated to be an employee of the 2nd respondent (2nd accused). The 2nd respondent is a limited company and the cause title of the complaint shows that the summons of the limited company was sought to be served through the first respondent. 2. The allegation of the applicant is that the accused have installed a water tank. According to the applicant notice was issued in November 2003 to the 1st and 2nd respondent calling upon them to remove the said water tank as an anti mosquito measure. When inspection was carried out it was found that - 2 - the 1st and 2nd respondents had failed to comply with the notice. Initially, the plea of the 1st respondent (1st accused) was recorded. His statement under section 313 of the Code of Criminal Procedure,1973 was recorded. His plea was of total denial. On the very same day on which the statement of the 1st respondent was recorded under section 313 of the said Code, the name of the second respondent was added. After the name of the second respondent was added, no further evidence was adduced by the applicant. 3. In paragraph 5 of the impugned order, the learned trial Judge has recorded a finding on perusal of the notice at Exh.P-4 that the same was issued only in the name of the first respondent and that also in his personal capacity. Notice was not issued to the 2nd respondent-company. Notice was sent at the office of the 2nd respondent-company. What has been held by the learned Magistrate is that there was no evidence of personal service of notice at Exh.P-4 to the first respondent and the notice was not issued to the 2nd respondent-company. The learned Magistrate held that in the notice after the name of the 2nd respondent the suffix "by the Manager" was added. The learned Judge held that the first respondent was neither a Manager nor a Director of the second respondent-company. 4. Section 381-A of the said Act of 1888 contemplates that if the work which is covered by sub section 1 thereof is carried - 3 - out without permission in writing of the Commissioner, the Commissioner may by written notice require the owner or other person who has done such work to demolish the work in such a manner as the Commissioner may prescribe. It must be stated here that under clause (b) of section 471, the failure to comply with the requisition lawfully made is also made punishable. The second respondent is admittedly the owner of the property in which the tank was installed. It is not the specific case of the applicant that the first respondent had carried out the said work. Section 381-A contemplates notice to the owner or the other person who has done the work. Notice at Exh.P-4 shows that the same was not addressed to the second respondent-company. 5. In the circumstances, when the learned Magistrate found that even the notice was not served personally to the first respondent, the offence punishable under section 471 of the said Act is not established. The said finding is certainly a possible finding which could have been arrived at on the basis of the material on record. In the circumstances, no case is made out for grant of leave. Application for leave is rejected. JUDGE JUDGE JUDGE