ORDER

Dalal, J. - This is an application for revision of an order of a Magistrate of the first Class at Budaun. The applicant has been convicted u/s 265(c), Municipalities Act, and sentenced to a fine of Rs. 50 for exposing fruits for sale so as to cause obstruction in a street belonging to the Municipal Board, Budaun. He occupied a shop abutting on the street and kept a wooden bench on the pavement in front of his shop. He was prosecuted for causing obstruction to the street and convicted. The evidence on the record satisfactorily proves that he was found keeping a bench on the pavement without the permission of the Municipal Board. But there is absolutely no evidence to show that he exposed any articles for sale or that the bench kept by him caused any obstruction in the street. The gist of the offence u/s 265 is the obstruction to the free passage of any street. There is no evidence to prove that he caused any obstruction by his act. No presumption against him can be made merely from his putting a bench temporarily on the pavement adjoining the road. It lay on the prosecution to prove all the elements that constituted the offence but it failed to do so. His conviction u/s 265, Mu