Judgement

BHARGAVA, J. :- The appellant, K. M, Kanavi was the President of the Municipal Borough of Gadag Betgeri from 11th January 1960 to 15th March. 1963. He was removed from the Presidentship on 15th March 1963 by an order passed by the Government of Mysore for neglect of duty and incapacity under Section 21 (2) of the Bombay Municipal Boroughs Act, 1925, (No. XVIII of 1925) (hereinafter referred to as the Act") which was applicable to Gadag Betgeri, even though it was situated in the State ` of Mysore, because it was earlier a part of the State of Bombay. On the next day, i. e., on 16th March, 1963, the Government passed an order superseding the Borough. The appellant filed two writ petitions challenging these two orders of his removal and supersession of the Borough. The order of supersession was quashed by the High Court of Mysore by its judgment D/-10-4-1963 in Writ Petn. No. 492 of 1963 reported in President, Gadag-Betgiri Municipal Borough v State of Mysore, 19641 Mys LJ 147. Thereafter, elections were held for the office of the President, because the appellant had ceased to be the President under the order of removal. One Malashetti was elected as the President of the Borough on 22nd April, 1963. On 25th April, 1963, the new President asked the appellant to hand over all the papers, documents and property belonging to the Municipal Administration. On 2nd May, 1963, the appellant sent three keys and two files of papers by registered parcel to the new President. The new President returned it on the ground that those articles had not been delivered to him in person by the appellant and he considered it unsafe to take delivery of the registered parcel. When sending this parcel, the appellant wrote an accompanying letter in which he specifically stated that he was retaining certain papers as they were needed by him for his writ petition which was pending against his order of removal. Thereafter, on 20th June, 1963, the State Government made an order under sub-section (2) of Section 23A of the Act directing the appellant to hand over charge of all the papers and properties which were in his possession to the new President. He was also asked to hand over an iron cupboard with its keys and contents which were with him. This Government Order wag served on the appellant on 9th July, 1963. The appellant did not comply with the Order and, consequently on 21st September. 1963, the Government of Mysore sent an order to the Divisional Commissioner directing him to take necessary action under S. 23A of the Act to prosecute the appellant, since he had defied the Government Orders and had refused to hand over charge of the papers and properties of the Borough to the newly elected President The Divisional Commissioner in turn wrote to the Deputy Commissioner on 5th October. 1963 requesting him to take immediate action under Section 23A (3) of the Act to prosecute the appellant. The Deputy Commissioner then passed an order authorising the newly elected President of the Borough to be the formal complainant in respect of this prosecution which had been ordered by the Government and to file a criminal complaint against the appellant. This order was made by the Deputy Commissioner on 24th December, 1963. The new President, Malashetti, thereupon filed a complaint against the appellant for an offence punishable under Section 23A (3) of the Act. The complaint itself is dated as 3rd January, 1964, but the judgment of the High Court mentions that the complaint was actually presented in Court on 8th January, 1964. Since these dates are not very material for decision of the point on the basis of which this appeal is being decided, we have not tried to ascertain the exact date of presentation of the complaint in court. On the basis of this complaint and the facts mentioned above, the appellant was convicted by a Magistrate for the offence under Section 23A (3) of the Act and was sentenced to play a fine of Rs. 50, in default to suffer simple impris