1. This is an appeal by the Superintendent and Remembrancer of Legal Affairs, Bengal, against an order of acquittal passed by Mr. B.N. Mukherjee, Magistrate, first class, Howrah, acquitting the accused in respect of an offence punishable under Section 353 of Act III (B.C.) of 1884 of not complying with the terms of a notice under Section 209 of the Bengal Municipal Act served on him on the 16th September, 1922. The facts which have given rise to this appeal at the instance of Government, shortly stated, are as follows. The accused was served with a requisition under Section 209 of the Municipal Act requiring him to cause a fence to be erected for the protection of passengers and pedestrians over the bank of a tank belonging to the accused. The accused disobeyed this requisition, his grounds being that in 1898 certain land on the side of the tank was made over by him to the municipality and conditions were imposed by him on the municipality at the time to the effect that if in future any fencing had to be erected or was required on the side of the tank the municipality would erect such a fencing at their own costs. Now it appears to us on examination of the record that the accused, who is one of the heirs of one Girish Chandra Banerjee, proposed some; time in 1898 to the municipality of Howrah offering to give up a certain strip of land or such part thereof as might be necessary for the purpose of straightening; a tortuous portion of a lane called Girish Banerjee Lane lying between the bank and premises No. 15, Girish Banerjee Lane. It appears from the petition of appeal of the Legal Remembrancer that on the 3rd September, 1898, the members of the Works Sub-Committee of the Howrah Municipality recommended to the municipal commissioners that the proposal of the heirs of Girish Chandra Banerjee should be accepted. The accused states, that on the acceptance of his offer being, communicated to him by the municipality he caused a letter to be written to the Secretary of Howrah Municipality on the 14th December, 1898. The contents of this letter have been set out in paragraph 15 of the petition of appeal. In 1914 it appears that owing to erosion of the bank of the tank, the lane in question became dangerous to the wheeled traffic and on the 16th May, 1914, Mr. Hopkyns who was then the Chairman of the Howrah Municipality wrote a letter to the accused asking him to have this tank fenced as early as possible. The accused wrote a. letter in reply, dated 20th May, 1914, in which he referred the Chairman, to the Resolution No. 5(1) of the commissioners of the Howrah Municipality, dated the 6th October, 1898, and a letter dated 14th. December, 1898 by which he made over a strip of land on the east side of the tank in question on condition, as he alleged, that if any fencing was required on the side of the tank the municipality would have to erect the same at their own costs. On receipt of this letter it appears that the municipality caused certain departmental, estimates to be prepared for fencing and for acquiring the extra strip of land on the side of the tank but that inasmuch as, the funds did not permit of this work being done at once the work was left in abeyance. This is clear from paragraphs 10 and 11 of the petition of appeal of the Legal Remembrancer. Some time thereafter, that is in September, 1922, the requisition as referred to above, was served on the accused under Section 209 of the Bengal Municipal Act. The accused failed and neglected to carry out the works specified in the requisition and he was prosecuted before the Deputy Magistrate of Howrah who by his order dated 5th January, 1923, acquitted the accused.
2. On behalf of the appellant it has been contended before us that the letter of the 14th December, 1898, relied upon by the accused and a copy whereof has been tendered in evidence, being Exhibit (A), was a copy of a letter addressed to the municipality by the accused and as such it was not admissible in evidence. Further, it has been argued that there are no materials from which it can be established that the municipality had undertaken to fence the tank at their own costs and that assuming that the municipality had so undertaken, that, by itself, did not and could not absolve the accused of his obligation to carry out the requisition which was served on him under the provisions of Section 209 of the Bengal Municipal Act. Now so far as the materials on the present record go, it is clear that, at any rate, from 1914, onwards, up to date, the accused has been insisting upon this, namely, that the land was originally made a free gift to the municipality on such conditions as are to be found in the letter of the 14th December, 1898. It has been suggested to us that in the archives Of the municipality at Howrah there is no such letter as the letter of the 14th December, set out in paragraph 15 of the petition of appeal, purports to be, and that what had really happened was that along with the letter of the 20th May, 1914 written in reply to Mr. Hopkyns' letter, a letter purporting to have been written on the 14th December, 1898, was enclosed, and that the accused had obtained a certified copy of that copy which he had enclosed in that - letter. Now the document Exhibit (A) does not by itself purport to be a certified, copy of a copy of a letter.
3. The witness to whom this letter was pub in the course of his cross-examination does not describe it as a certified copy of a copy of a letter. He states that it is a certified copy of a letter bearing a date of the 14th December, 1898 and we find on Exhibit (A) itself a note by the Magistrate that the letter itself of which it purports to be a copy was admitted by the pleader for the prosecution.
4. In the third place, it is clear from the extract of the register of letters received by the municipality of Howrah in the month of December, 1898, that a letter purporting to come from the accused and bearing the date of the 14th December, 1898, making a free gift of certain land on certain conditions was received by the municipality. In the 4th place, it is apparent from the materials on the record that throughout the years 1914, 1915, 1916 and 1917 the accused had been consistently insisting upon the performance by the municipality of the conditions which he had imposed upon them at the time when he made a free gift of the land to the municipality in December, 1898. Taking all these circumstances together, the cumulative effect thereof is, in our opinion, conclusive of the fact that the municipality had received a letter such as has been set out in paragraph 15 of the petition of appeal of the Legal Remembrancer and that it is now too late for the municipality to contend that no such conditions, as are to be found in the letter, were ever imposed by the accused at the time when the free gift of the land was made to the municipality. That being so, it follows, in our opinion, that Exhibit (A) was admissible in evidence and secondly, that there are abundant materials on the record from which an affirmative conclusion may be drawn that the municipality accepted a free gift of the land on conditions imposed by the accused. The question now arises whether having regard to all the facts, referred, to above, the municipality in 1922 was entitled, by means of the requisition under Section 209 of the Bengal Municipal Act, to call upon him to Cause a fence to be erected on the side of the tank. The language of the section is only indicative of this, that there is power in the municipality to require a person to cause a fence to be erected by the side of a tank. But, because the power is existent in the municipality by virtue of statutory provisions, it does not follow that the municipality cannot accept conditions such as were imposed by the accused in December, 1898 when he made a free gift of certain land to the municipality. There is nothing in the Municipal Act itself which can remotely suggest that the municipality is incompetent to enter into a binding engagement of this description. If that is so, the municipality is not, in our opinion, in the circumstances of the particular case, competent to require the accused to cause a fencing to be erected at his own cost. The circumstance that from the years 1915, 1916 and 1917 the question of sanction of a departmental estimate for the fencing of the tank was on the tapis, cannot be overlooked. It shows, in our opinion, that the municipality at that time was prepared to acquiesce in the contention put forward before it by the accused that the fencing, if it had to be done at all, had to be done at the expense of the municipality. It was not until it was discovered that the funds did not permit the fencing in question to be erected at once that this prosecution started. On review of the entire circumstances before and after the prosecution started, we are of opinion that, there is no ground for our disturbing the order of acquittal.
5. The appeal is, accordingly, dismissed.