1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2351 OF 2008 (For leave to appeal) IN CRIMINAL APPEAL NO. OF 2008 Mumbai Municipal Corporation ..... Applicant. V/s Haji Bismilla Choudhary & ors. ...... Respondents. ------ Ms Teja Katdarey i/b S.H. Uhainwala & Uday Kedar for the applicant. Mr. Rajesh More, APP for the State. ------ CORAM: V.M. KANADE, J. DATE: 3rd October, 2008 P.C.: 1. Heard the learned Counsel appearing for the applicant – Mumbai Municipal Corporation. 2. Mumbai Municipal Corporation is challenging the judgment and order dated 19/10/2007 passed by the learned Metropolitan Magistrate 42nd Court, Shindewadi, Dadar whereby he was pleased to acquit the respondents – accused of the offence punishable under sections 475(A)(1)(b) read with section 351 of the Mumbai Municipal Corporation Act. 2 3. The case of the complainant is that the respondents had carried out an unauthorized construction in respect of the Masjid on the suit site. The Trial Court has taken into consideration the evidence of P. W. 1 – Madhukar Magar and P.W. 2 – Anand Wagralkar. The Trial Court has observed that P.W. 2 – Anand Wagralkar had never inspected the Masjid and though P. W.1 – Madhukar Magar had inspected the Masjid on various occasions, he did not produce any document pertaining to the unauthorized structure and that he did not peruse the plan of assessment department to ascertain whether the structure was assessed by the Corporation. The Trial Court has further observed that the case was also filed with the police under the MRTP Act and the subject matter of the said complaint and the present complaint was the same. The said complaint was also dismissed by the Magistrate. The Magistrate has observed that since the subject matter of the first complaint and the subject matter of the present complaint is similar, the principle of double jeopardy would be applicable to the second complaint filed by the Corporation. The Trial Court has further observed that the Corporation did not bring on record the original building plan or other documents to establish that the respondents have carried out unauthorized construction. The said complaint was, therefore, dismissed on the aforesaid grounds. 4. In my view, no case is made out by the Corporation for grant of leave. One complaint on similar facts filed with the Police under the provisions of MRTP Act has already been dismissed. The second complaint in respect of the same subject matter has been filed by the 3 Corporation. The Trial Court has rightly observed that the principle of double jeopardy would be applicable in the facts and circumstances of the present case. Apart from that, the Magistrate has given cogent reasons and has observed that the Corporation has not established that the structure in question was unauthorized. No case therefore is made out for grant of leave. Leave is accordingly refused. Appeal does not survive. (V.M. KANADE, J.)