IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 21ST JULY 2006 / 30TH ASHADHA,1928 CRL.A.No. 186 of 1998 --------------------------- ST.CASE No. 4349/1993 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... APPELLANT: --------------- THE SECRETARY, PALAKKAD DEVELOPMENT AUTHORITY, PALAKKAD. BY ADV. SRI. V. CHITAMBARESH SRI. T.C. SURESH MENON RESPONDENTS: ------------------ 1. VELU, S/O. KANDAN, RESIDING AT NEAR VISWESWARA TEMPLE, YAKKARA, PALAKKAD. 2. UNNIKRISHNAN, S/O. VELU, RESIDING AT NEAR VISWESWARA TEMPLE, YAKKARA, PALAKKAD. 3. P.K. RAJANI, D/O.KUTTAPPA, RESIDING AT SUDEVAN COLONY, WEST FORT ROAD, PALAKKAD. 4. V. CHANDRAN, S/O. VELLANDI, RESIDING AT 'NIDHI', A.R. NAIR COLONY, KANNANUR AMSOM, PALAKKAD. 5. K.R. GOPINATH, S/O. RAMAKRISHNAN, RESIDING AT KARUKODI, VADAKKANTHARA, PALAKKAD. BY SRI. K.J GEORGE. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/07/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. HEMA, J. --------------------------------------- Crl. Appeal No. 186 OF 1998 ---------------------------------------- Dated this the 21st day of July, 2006. J U D G M E N T This appeal is filed by the Palakkad Development Authority. The said authority filed the complaint against the respondents alleging offence under Section 44B of the Madras Town Planning Act. The accused after trial were acquitted and hence this appeal. 2. The complaint was filed by the appellant alleging that accused Nos.1 and 2 along with other neighbouring land owners entered into an agreement Exhibit P1 dated 15.06.1989 with the complainant in respect of development and allotment of lands owned by them under the provisions of the Madras Town Planning Act. According to the complainant, all the lands covered by the agreement would come within the “Stadium Complex Scheme”. In contravention of the provisions of the agreement and the scheme, accused Nos. 1 and 2 sold their land to the other accused. The other accused were aware of the fact that the land in question was included in the scheme and also in the agreement executed with the complainant. But the accused have allegedly committed gross breach and violated the provisions of the scheme. They failed to comply with the provisions of the scheme knowingly and they committed the offence punishable under Section 44B of the Madras Town Planning Act. Notices were CRA. 186/1998 2 issued to them calling upon them to comply with the provisions of the scheme, but they failed to do so and hence the offence is committed under Section 44B of the Madras Town Planning Act. 3. The appellant-complainant examined PWs 1 to 4 and marked Exhibits P1 to P23 series. On his side, the accused did not adduce any evidence. On analysis of the evidence, the court below found that the appellant has not established the offence under Section 44B of the Madras Town Planning Act and the accused were acquitted of the alleged offence. 4. Learned counsel appearing for the appellant argued that there is violation of the conditions in Exhibit P1 agreement and a notice was also issued (the copy is Exhibit P7) calling upon the accused to discontinue the breach of the agreement and hence the accused have committed offence under Section 44B of the Madras Town Planning Act. To appreciate the argument advanced, a reading of Section 44B of Madras Town Planning Act is essential. Section 44B of the Madras Town Planning Act reads as follows: “Penalty for breach of the provisions of the scheme: (1) Where a scheme sanctioned under this Act has provided that any person who commits or knowingly permits a breach of any specified provision of the scheme or who neglects or fails to comply with any such provision shall be punishable under this section, the responsible authority shall send to any person who CRA. 186/1998 3 commits or knowingly permits a breach of any such provision of the scheme or neglects or fails to comply with any such provision, a notice calling on him to discontinue the breach or cause it to be discontinued or to comply with such provision of the scheme. (2) If after the expiry of one month from the date of receipt of the notice by such person under sub-section (1) the breach or neglect or failure continues, such person shall, on conviction, be punishable - (i) with fine which may extend to one hundred rupees, and (ii) if the breach, neglect or failure continues after such conviction, with fine which may extend to fifteen rupees for every day during which the breach, neglect or failure continues after such conviction”. 5. It is clear from the reading of Section 44B of the Madras Town Planning Act that for the continued offence, the complainant has to establish that, (i) there is a scheme sanctioned under the Act. (ii) such scheme has provided that any person who commits or knowingly permits a breach of any specified provision of the scheme or who neglects or fails to comply with any such provisions shall be punishable under Section 44B of the Madras Town Planning Act. (iii) the responsible authority has send to any person who commits or knowingly permits a breach of any such provision of the scheme or neglects or fails to comply with any such provision. (iv) by such notice of such responsible authority shall call upon such defaulter to discontinue the breach or cause it to be discontinued of to comply with such provisions of the scheme. CRA. 186/1998 4 (v) even after expiry of one month from the date of receipt of the notice by such person, the breach or neglect or failure continues. If only all these ingredients are established by the complainant, offence under Section 44B of the Madras Town Planning Act will lie against the accused”. 6. But on a reading of the complaint and the evidence in this case and on perusal of the records, I find that the relevant scheme has not been produced in evidence by the complainant. The non production of the scheme and the marking of the same is fatal to the prosecution. It is only if the relevant scheme provides that a particular breach, neglect or failure by a person, of a specified provision of the scheme makes the person punishable under the provisions. It is not possible for this court to ascertain whether any provision in the scheme provides for such a condition, without production of the scheme. In the absence of production of the scheme, the most vital ingredient of the offence stands not established by the complainant. 7. Apart from this, a notice has to be sent by the responsible authority to the person who commits the breach. The complainant has also to establish that such person received such notice. It is only after expiry of one month from the date of receipt of such notice, if the breach, neglect or failure continues that the person can be convicted under Section 44B of the Madras Town Planning Act. But there is nothing to show that the accused in this case were served with a CRA. 186/1998 5 notice referred to in Section 44B of the Madras Town Planning Act. It is also relevant to note that even at the time of evidence, nothing is stated by the witnesses as to when exactly the notice was served or received by the accused. An offence under Section 44B will be committed only if the breach etc. continues even after the expiry of one month from the date of receipt of notice by the accused. In sub-section (1) of Section 44B, the breach or neglect or failure is to be continued by the accused. But the complainant has not mentioned/stated in the complaint when the notices were served or received by the accused. It is also not clear from the complaint that the accused continued the breach or neglect or failure after expiry of one month from the date of receipt of notice. In such circumstances, in the absence of evidence to establish the date of receipt of notice, it is not possible to hold that the accused committed the offence under Section 44B of the Madras Town Planning Act. The act can be committed only after one month of date of receipt of notice under Section 44B(1) and if the accused still continues the breach or neglect or failure of the provisions of the scheme. There is absolutely no ground to interfere with the order of acquittal. This appeal is dismissed. K. HEMA, JUDGE smp