1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 572 of 2010 Shri Rahul Bhatnagar ...Applicant Versus The Mumbai Municipal Corporation & Anr. ...Respondents Mr. Subodh Desai for Applicant Ms.Seema Ranade for BMC Respondent No.1. Mr. H.J.Dedia, APP for Respondent No.2 State CORAM:- R.Y.GANOO, J. DATED:- 4th JULY, 2011. P.C. 1. The petitioner has filed this application for quashing of proceeding covered by C.C.No.21/PW/2009 pending before the learned Metropolitan Magistrate, 39th Court, Vile Parle (West), Mumbai. The respondent no.1, Mumbai Municipal Corporation filed an FIR at Bandra Police Station on 25th August, 2008 through its Officer Mr. Pravin Dhawale alleging therein that the petitioner has amalgamated shop nos. 1 to 4 situate at Dhiraj Plaza, Hill Road, Bandra (West), 2 Mumbai 400 050 without obtaining permission from the Mumbai Municipal Corporation and has thereby committed offence punishable under Section 53(1) to the Maharashtra Regional Town Planning Act. The petitioner, Mr. Bhatnagar, against whom, this FIR is filed has filed this criminal application for quashing of C.R.No.60 of 2008 as also criminal complaint which is pending in the court as mentioned aforesaid. 2. Heard learned Counsel on both sides at the stage of admission. 3. Rule is issued. 4. By consent, rule is made returnable forthwith and the petition is taken up for hearing. 5. A reading of the FIR at page 39 onwards goes to indicate that it is the petitioner who demolished the walls between shop nos.1, 2, 3 and 4 respectively so as to create one huge structure. In the FIR, the petitioner is styled as Senior Manager. According to the Corporation, the petitioner is responsible for carrying out the unauthorized work 3 and that is how the FIR came to be lodged against him. 6. I have considered the entire record. There is specific averment in the petition by which it is stated that the property in question i.e. shop nos.1 to 4 were in possession of M/s. Asian Paints on leave and license as per agreement dated 8th August, 2006 with the owners of shop nos.1 to 4. 7. It is the case of the petitioner that the company with which he was working, namely M/s. Asian Paints had applied to the Corporation for regularization of the work carried out at shop nos.1 to 4 and the Corporation had by leter dated 9th March, 2009 informed the architect about carrying out the work. According to the petitioner, the said work was carried out and the architect of the company was informed by the Corporation by letter dated 26th August, 2009 that the Completion Certificate submitted by the architect of the company was accepted. 8. Learned Counsel appearing on behalf of the petitioner assailed the lodgment of the FIR and the conversion of the same in the criminal 4 case on two counts. Firstly, the Corporation had regularized the work in regard to shop nos.1 to 4 and therefore the complaint filed against him now does not survive. The second point raised by the petitioner relates to the status of the petitioner qua M/s. Asian Paints. According to the learned Counsel for the petitioner, the petitoiner was working as Senior Manager of Asian Paints and was asked to be at shop nos. 1 to 4 to render his job. Learned Counsel Mr. Desai submitted that even if the word of the complainant Mr. Dhavale is accepted that the petitioner was found at the site on 11th February, 2008 when said Dhavale complainant visited the premises, according to Mr. Desai said four shops were in possession of M/s. Asian Paints and therefore, if at all any offence is said to have been committed, as alleged, the same is committed by the Company and certainly not by the petitioner who is an employee of M/s. Asian Paints. He pointed out that in the text of the FIR there is nothing to show that the alleged work was carried out by the petitioner. 9. Learned Counsel appearing on behalf Corporation tried to support the stand of the complainant Mr. Dhavale, as also the Corporation to contend that the petitioner was rightly prosecuted under Section 5 53(1) of the Maharashtra Regional Town Planning Act. 10.Having heard learned Counsel on both sides, I am inclined to observe that the present petition is required to be granted. Reasons are as under. 11.Even if the word of Mr. Dhavale, complainant is accepted that the petitioner is the Senior Manager of M/s. Asian Paints, there is nothing to show on the basis of record that the petitioner had done some activity at the site, which according to the Corporation resulted in violation of the provisions of Maharashtra Regional Town Planning Act. If it was the case of the Corporation that the unauthorized work is carried out at the site, it was necessary for the Corporation to prosecute M/s. Asian Paints, the company, in whose possession the said shops were, as it has been the stand of the petitioner that the said premises were secured by M/s. Asian Paints. In my view, the prosecution launched against the petitioner who happens to be the employee of the company cannot sustain as the FIR does not specifically mention that it is the petitioner who is directly responsible for violating the provisions of the Maharashtra Regional 6 Town Planning Act. 12. In view of above, I have not gone into the question as to whether the work carried out at site is regularised. All questions in that behalf are left open. 13.In view of the aforesaid discussion, the petition is required to be granted. Following order is passed so as to dispose of the petition. ORDER i) Petition is made absolute in terms of prayer clause (b). (R.Y.GANOO, J.)