D.S. Dave, J.
1. This is an appeal by the Executive Officer, Municipal Board, Rajgarh, against the judgment of the learned Additional Sessions Judge, Churu, dated the 31st May, 1960, acquitting accused Harka Ram of the offence under Section 165 of the Rajasthan Town Municipalities Act, 1951 (hereinafter called the Act) and setting aside the fine .which was imposed on hijn by the .Sub-Divisional Magistrate First Class, Rajgarh, on 30th April, 1960.
2. The facts giving rise to this appeal are that on 2.2nd September, 1950, the Executive Officer of the Municipal Board, Rajgarh, presented a complaint in the court of the Sub Divisional Magistrate First Class, Rajgarh. It was stated by him that the house of the accused Harka Ram was 'situated in a locality called Mohalla Mochiyan, Shitala Chowk. On the eastern side off that house there was an open piece of land, which belonged to the Municipal Board and which was leased out to one Debu Mochi. The accused broke open a portion of the wall of his house on the eastern side in order to construct a door.
When the complainant came to know about it, he served a notice dated 28th August, 1959, directing the accused to close the opening which he had made. The accused refused to accept that notice and so another notice was sent to him on 29th August, 1959, by registered post. Even then, the accused did not comply with the notice and disobeyed it. It was therefore prayed that the accused should be convicted under Section 165 of thesaid Act.
3. The accused admitted in the trial court that he had opened a door in the wall which was adjacent to the land given out on lease by the Municipal Board to Debu Mochi. He, however, denied his guilt and pleaded that he had presented an application to tile Municipal Board asking for permission to open the said door and that the required permission was given to him by the Board. He, therefore, demolished a portion of the wall in order to construct a door. It was also pleaded by him that he was being prosecuted on account of party factions between the members of the Board.
4. The complainant examined himself and produced two documents, the first being the notice dated 28th August, 1959, and the second an acknowledgment of that notice. The accused examined Shri Sawarjnal, Ex-Chairman, in his defence and produced 4 documents to show that he had presented an application for permission to open the door and that the requisite permission was actually given to him on 7th May, 1959, vide Ex. D 4.
5. The Sub-Divisional Magistrate came to the conclusion that the permission Ex. D4 given by the Chairman was not a valid sanction because such permission, according to him, could bs given only by the Executive Officer. It was further held that the accused had knowingly disobeyed the notice given by the Executive Officer on 28-8-59 and therefore he was convicted under Section 165 of the Act and sentenced to pay a fine of Rs. 25/-. It was further ordered by the Magisitrate that the accused was allowed one week's time to close the door and that if he would fail to carry out that direction within the said period, he will have to pay a recurring fine at the rate of Rs. 2/8/- per day from the date of his order i.e., 80th April, 1960. Aggrieved by this judgment, the accused preferred an appeal which was heard by the Additional Sessions Judge, Churu. It was found by the learned Judge that the Municipal Board, Rajgarh, had knowingly withheld the production of the file relating to the application which was made by the accused for permission to open the door and that in the absence of its production before the Court, it could not be said if the permission to open the door was not given by the Executive Officer.
It was further held that according to Section 108(4) of the Act the accused had a right to proceed With the construction after a month of the presentation of the application if it was not decided. In the opinion of the learned Judge, the accused was prosecuted simply because the new members of the Board did not approve of the action of the out-going members. He therefore allowed the appeal and set aside the conviction and the fine imposed upon the accused. It is against this judgment that the present appeal is directed.
6. The first objection raised by learned counsel for the appellant is, that the learned Additional Sessions Judge had no jurisdiction to Hear the appeal, since the fine imposed by the Sub-Divisional Magistrate First Class was only Rs. 25/-and therefore no appeal lay according to Section 413 Cr. P. C. In reply, it was urged by learned counsel for the accused that the Magistrate had also imposed a recurring fine at the rate of Rs. 2/8/-per day and therefore Section 413 Cr. P. C. did not bar the appeal.
It is contended by learned counsel for the appellant that the accused had filed toe appeal in the court of the. Additional Sessions Judge only iseven days after the judgment of the trial court an.d therefore even the recurring fine did not amount to more than Rs. 17/8/- and this added to the substantive line of Rs. 25/- did not exceed Rs. 50/-. According to him, since the fine imposed by the Sub Divisional Magistrate First Class did not exceed Rs. 50/- the only remedy whichlay open to the accused was to present a revision application to this Court and that he had no right to file an appeal which was covered by Section 413 Cr. P. C.
7. I have given due consideration to these arguments and, in my opinion, the objection raised by learned counsel for the appellant in this court is without any force. Section 413 Cr. P. C. bars an appeal by a convicted person only in those cases in which a High Court passes sentence of imprisonment not exceeding six months or of fine not exceeding two hundred rupees, or in which a Court of Session passes a sentence of imprisonment not exceeding one month or in which a Court of Sessions or District Magistrate or other Magistrate of the first class passes a sentence of fine not exceeding fifty rupees only.
Now, it is true that the Sub Divisional Magistrate had imposed a fine of Rs. 25/- only under Section 1.65 of the Act, but at the same time, he imposed a further fine of Rs. 2/8/- per day commencing from 30th April, 1960, to an indefinite Period unless the accused were to comply with the order closing the door within a week. It may be observed that Section 413 Cr. P. C. contemplates the imposition of a lump sum fine and it does not envisage a case in which a recurring fine is imposed upon the accused. It may be pointed out that an appeal against the order of the Magistrate or the sentence awarded by him may be preferred to any court othet than a High Court within a period of thirty days from the date of the sentence or order which is sought to be impugned.
Now, if in a case like the present one, an accused prefers an appeal, say 25 days after the date of the judgment, the recurring fine by that time at the rate of Rs. 2/8/- per day would amount to Rs. 75/- and would thus certainly exceed the maximum limit of Rs. 50/-. In those circumstances, it cannot be urged with any justification that the total amount of fine did not exceed Rs. 50/- and therefore an appeal cannot lie. It may be further pointed out that the legislature does not contemplate a distinction between an appeal which is filed after seven days and an appeal which is filed after 10, 15 or 25 days. All the appeals stand on the same footing so long as they are preferred within the prescribed period of limitation.
There is therefore no force in the contention raised by learned counsel for the appellant to the effect that the present appeal having been filed by the accused within 7 days from the date of the Magistrate's order, an appeal did not lie. It is clear that Section 413 Cr. P. C. does not contemplate a case of recurring fine and therefore whenever a recurring fine is imposed by a court, an appeal against such an order cannot be barred by this Section . The only sentence which was covered by Section 413 Cr. P. C. in the present case was the imposition of the fine of Rs. 25/- by the Magistrate, but even the order relating to this fine became appealable according to the provisions ot Section 415 Cr. P. C., because that punishment was combined with another punishment by which a recurring fine was imposed. There is thus no force in the contention raised by learned counsel for the appellant and it is hereby dismissed.
8. It is next urged by learned counsel for the appellant that according to Section 216 read with Section 108 of the Act, the permission for opening the door could be given to the accused only by the Executive Officer, that the Executive Officer had also got the power to order the accused to close the door, that the accused had disobeyed the order of the Executive Officer in spite of the notice Ex. PI being served upon him, that the Magistrate had rightly convicted him and the learned Additional Sessions Judge had committed an error in acquitting him of the charge and therefore the order of the Additional Sessions Judge should be set aside and that of the trial) Court should be restored.
9. I have given due consideration to the argument of the learned counsel and in my opinion She learned Additional Sessions Judge has committed no mistake in setting aside the conviction of the accused. It appears from the record of the trial court that the appellant did nothing except examining himself and producing a copy of the notice which he had given to the accused. Even, the record of the Municipal Board relating to the application which was filed by the accused for obtaining permission for opening the door was not produced and its production was withheld on the ground that the file was missing.
Today, learned counsel for th appellant has presented an application together with a certified copy of the order which purports to have been made by the Municipal Board, Rajgarh, on 25th April, 1959. It is contended by learned counsel that the Executive Officer of the Municipal Board had by this order definitely dismissed the application of the accused presented by him in March, 1959. It is urged by learned counsel for the accused that this certified copy should not be 'taken into consideration because the original thereof must be in the possession of the Municipal Board and its production has been withheld. It is also urged that no such case was set up by the Executive Officer either in his complaint or at the time when he appeared in the trial court. It is also urged that this fact was not mentioned even in the notice which was given by the Executive Officer.
10. I find that there is much force in the objection raised by learned counsel for the accused. The original of what purports to be a certified copy of the order has not been produced by the complainant. The original was not produced in the trial court and it was stated in that court that the file was missing. It is not mentioned in the application if that file has been traced out and, if so, where it is lying, la the absence of the production of the original file, no reliance can he placed on the copy. Learned counsel wanted this .Court to infer from this copy that the accused was informed about this order and that it bore his signatures. It would suffice to observe that the signatures of the accused cannot be presumed simply because his name appears on the certified copy.
It was the duty of the complainant to produce the original and give a chance to the accused to see it and, then alone, the accused could be in a position to say whether intimation of such an order was given to him or not. There is thus no force in the application presented by learned counsel for the appellant and it is rejected.
11. Now, it is common ground between the parties that the accused had presented an application on 6th March, 1959, requesting the Municipal Board to permit him to open a door in his wall. According to Section 108(4) of the Act it was open to the accused to proceed with the alteration if the 'Municipal Board jailed to pass any order thereon within a month from the receipt of the notice given to it. It was incumbent upon the complainant to prove that some order was passed on that application within one month from the receipt of the notice and that the accused was intimated of that order. It has already been observed above that the complainant withheld the production of the file and therefore the court was not in a position to know what steps were taken by the Municipal Board within a month from the receipt of that application.
On the contrary, the accused produced the document (Ex. D 2) which shows, that he had no only presented the application but also deposited the fee of Re. 1/- on 6-3-59. He next produced Ex. D 3 which was copy of a proclamation issued by the then Executive Officer dated 20-3-59, whereby all persons concerned were requested to file an objection if any, within 15 days. It is unfoutunate that the Complainant withheld the entire record with the result that the court was not in a position to know if any objection was put forward by any person after this proclamation. The accused further produced Ex. D 4 which shows that permission was given to him by the then Chairman Shri Sawarmal. Shri Sawarmal was examined by him in his defence. It was stated by this witness that the Executive Officer himself had given permission to the accused and that he had signed Ex. D 4 after seeing the order of the Executive Officer which was on the file, because that officer was not present on that particular day, i. e., 7-5-59.
It has been suggested on behalf of the appellant that P. W. Sawar Mal had tried to help the accused by signing Ex. D 4 after he was removed from the office of Chairman. It appears from his statement that his question was pointedly put to him in his cross-examination but he stoutly denied the allegation made against him and state-e.d that he left the chairmanship long after he had signed Ex. D 4. It appears from the record that when the notice Ex. P 1 was served upon the accused, the latter had definitely mentioned in his reply to that notice that he had obtained written permission from the Municipal Board. Under these circumstances, a very heavy du':y lay on the complainant to prove that Ex. D 4 was a document forged after the retirement of Shri Sawarmal. No such evidence has, however, been produced. Thus, there was no strength in the case of the complainant on merits and the learned Additional Sessions Judge had rightly set aside the conviction of the accused.
12. There is no force in this appeal and it is hereby dismissed.