VIJALPORE MUNICIPALITY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal is preferred by the original complainant against the judgment and order dated 15.4.2011 passed by the learned 2nd Additional Civil Judge and Additional Chief Judicial Magistrate, Navsari in Criminal Case No.3221 of 2009, whereby the learned Judge has dismissed the complaint and acquitted the original accused-respondent nos.2 and 3 herein.

(2.) THE brief facts leading to filing of this appeal are that a complaint being Criminal Case No.3221 of 2009 came to be filed by the original complainant-appellant herein against the original accused-respondent nos.2 and 3 herein under the provisions of Section 155(7) of the Gujarat Municipalities Act praying for conviction for putting up construction in contravention to the permission issued by the appellant. Summons was issued to the accused and plea was recorded and the matter was kept for recording evidence of the complainant. THEreafter, as the complainant did not remain present on fourteen occasions, the accused submitted an application below Exh.32 under Section 256(1) of the Criminal Procedure Code and prayed for dismissing the complaint and acquitting them. Reply to this application was filed by the original complainant. THEreafter, after hearing learned advocates for both the parties, the learned trial Court allowed the application below Exh.32, dismissed the complaint and acquitted the accused by stating that though this Court gave specific direction vide order dated 27.1.2010 in Special Civil Application No.13885 of 2009 to dispose of the said criminal case within nine months, the complainant did not remain present and hence this appeal.

(3.) LEARNED advocate Mr.Patel for respondents no.2 and 3 submitted that plea was recorded since long and the matter was adjourned only on account of non-availability of the complainant though the direction was given by this Court to complete the case, as early as possible. He also submitted that even after the application below Exh.32 was submitted, the matter was kept for recording evidence of the complainant and even on those occasions also, the complainant did not remain present. He, therefore, submitted that the trial Court has not committed any error in allowing application below Exh.32 and acquitting the accused. Reliance is placed on the decision in the case of S.Rama Krishna V/s S.Rami Reddy (deceased by L.Rs. And Ors.), reported in AIR 2008 SC 2066.