P. N. BHAGWATI, N. M. MIABHOY, J.

( 1 ) THE respondent is the owner of a restaurant situate on Plot No. A in Ward No. 7 of the Municipality of Surat. On 8/07/1959 the Encroachment Inspector of the Surat Municipality visited the premises of the respondent when he found an encroachment made by the respondent on public street by affixing a wooden plank measuring about 7 x 1 in the front portion of his shop. This wooden plank was resting on posts and was projecting on the public street. The respondent had already been fined twice in respect of this encroachment or projection. The Encroachment Inspector thereupon filed a complaint against the respondent charging the respondent with having committed the offence under section 152 of the Bombay Municipal Boroughs Act 1925 (hereinafter referred to by us as the Act ). The complaint was filed before the Special Judicial Magistrate First Class Surat. The respondent appeared before the learned Magistrate and his defence was that the wooden plank had been there for 5 to 6 years and that he had not committed any offence by putting up or continuing the wooden plank. The respondent also contended that in any event the complaint was barred by reason of the provision contained in the proviso to section 200 (1) of the Act.

( 2 ) THE prosecution led the evidence of the Encroachment Inspector and one clerk in the Surat Municipality called S. V. Karve who had accompanied the Encroachment Inspector when the latter visited the premises of the respondent on 8/07/1959. The Encroachment Inspector deposed that on 8/07/1959 when he went to the premises of the respondent he found the encroachment on the public street by reason of the wooden plank affixed by the respondent in the front portion of his shop and that the encroachment was on the portion of the public street which was beyond the land let out to the respondent. The Encroachment Inspector stated that the wooden plank was fixed on 8/07/1959 but admitted that he had not seen it being fixed and that he had made the statement that it was fixed on 8/07/1959 merely on the basis that he had not seen it on the previous day when he had gone to the premises of the respondent. The statement of the Encroachment Inspector that the wooden plank was fixed on 8/07/1959 was challenged by the respondent who maintained that the wooden plank was there since the last five or six years. S. V. Karve in his evidence admitted that he had seen the projection made by the wooden plank before the complaint was filed by the Encroachment Inspector. The respondent also gave evidence and stated that the wooden plank was there for six years right from the time when the construction was put up on the plot of land let out to the respondent. The respondent admitted that two cases had been filed against him for the wooden plank and that he had been convicted on both the occasions on admission. On this evidence the learned Magistrate held that the encroachment or projection caused by the wooden plank had been there for the last five or six years as deposed to by the respondent and that the respondent had been fined twice in respect of this very encroachment or projection. The learned Magistrate rejected the evidence of the Encroachment Inspector on the ground that he had specifically stated in the complaint that the respondent had been fined twice in respect of the same encroachment or projection which he found on 8/07/1959 and the complaint clearly proceeded on the basis that the encroachment or projection was continuing since some years and that in respect of the very encroachment or projection the respondent had been fined twice. The learned Magistrate took the view that inasmuch as the respondent was convicted twice in respect of the encroachment or projection it was clear that the Encroachment Inspector knew about the encroachment or projection long before 8/07/1959 and that he had failed to prove that the complaint was filed within six months from the date when he came to know abou

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