JUDGMENT: This is an appeal by leave under S. 417(3) of Cr. P.C. against an order of acquittal recorded by a Magistrate, 1st Class, in a case under S. 299 of the U.P. Municipalities Act, 1916.

2. The Municipal Board of Saharanpur sent information to the City Magistrate that the respondent has put on a khokha (temporary structure of wood) without the permission of the Board, on the Municipal land, which is creating obstruction in the free flow of the traffic on the municipal road which is against law and as such has made himself liable for punishment under S. 299 of the Act, Cognizance was taken by the learned City Magistrate on this information and he transferred the case to the Court of H.P. Srivastava, another magistrate, for trial.

3. The respondent was summoned and the substance of the accusation was stated to him. He admitted that he was occupying a khokha on the land of the municipal board but asserted that the aforesaid khokha had been constructed by one Sona Ram with the permission of the Board.

4. The complainant Municipal Board examined its Fire Inspector Jai Bhagwan and Overseer Govind Singh in support of its case. Jai Bhagwan stated that the respondent had been occupying n khokha on the 'patri' of the municipal road without the permission of the Board and that it has been interfering with the free flow of the traffic. He expressed his ignorance as to whether any case has been filed in civil court in respect of the land under the khokha by the respondent and Sona Ram. P.W. 2 Govind Singh proved the site plan (Ex. Ka. 1) which he had prepared after inspecting the locality which shows that the khokha in question stands on the left 'patri' of the Nawabganj Road of the Municipal Board. From the testimony of these two witnesses as well as from the admission of the respondent it is abundantly clear that the respondent is occupying a khokha which is standing on the 'patri' of the municipal road. According to the prosecution witnesses this khokha does obstruct the free flow of the traffic on the road.

5. The relevant portion of the bye-law No. 1(c) framed by the Municipal Board of Saharanpur in accordance with the provisions of S. 293(2) of the Municipalities Act reads as under :

"1. No person shall, without the previous permission in writing of the Collector or the Chairman, or the Executive Officer of the Board, according as the property belongs to the Crown or the Board.

(a) ……………

(b) .............

(c) build upon, erect am structure, do anything upon, or occupy in any manner any road, patri. street or place, situated within the Municipality and being the property of the Crown or of the Board or being under the control of the Board :

6. A contravention of the provisions of bye-law No. 1 has been made punishable by buy-law No. 2 which runs as follows :

"2. Whoever contravenes the provisions of bye-law No. 1 shall on conviction be punishable with fine; which may extend to Rs. 250/-, and, when the breach is a continuing one, with a further fine which may extend to Rs. 5/- (or every day after the date of the first conviction during which the defender proved to have persisted in the offence."

7. The question which requires determination in this case is as to whether the respondent is occupying the khokha with the permission of the municipal board or without its permission.

8. The respondent has not stated anywhere that he is occupying the khokha with the permission of the municipal board. His case is that the khokha was constructed by one Sona Ram after obtaining permission from the municipal board. In support of his allegations the respondent has filed receipts (Exs. Kha 1 to kha 5) which have been granted by the municipal hoard in favour of Sona Ram in lieu of rent received from him for land given for putting khokha near Mission School (kiraya zamin lagan khokha Mission School). Rameshwar Dayal (D.W. 1) Superintendent, Municipal Board, Saharanpur, deposed to have signed these rent receipts on behalf of the Municipal Board, he h