THE ASSISTANT COMMISSIONER NASHIKversusTHE DIRECTOR/MANAGER

       Digitally
       signed by
       VINA                                                               15.cri.alp.223.2018 @.doc
VINA   ARVIND
ARVIND KHADPE
KHADPE Date:
       2026.09.10
       17:48:10
       +0530
                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CRIMINAL APPELLATE JURISDICTION

                                  CRIMINAL APPLICATION (ALP) NO.223 OF 2018

                    The Assistant Commissioner Nashik
                    Municipal Corporation                                 … Applicant
                         Versus
                    The Director / Manager
                    Mobile Telecommunication Limited and anr.             … Respondents

                                                    ***
                    Mr. Rupesh Lanjekar for Applicant.
                    Mr. Raveen Palekar for Respondent No.1 (through VC)
                    Ms. Rashmi Tendulkar, APP for Respondent-State.
                                                    ***
                                                       CORAM : M.M. SATHAYE, J.
                                                          DATE     : 10 SEPTEMBER, 2026
                    P.C. :

                    1.       Heard the learned Counsel for the parties.

                    2.       The Applicant Municipal Corporation is seeking leave to file
                    challenging the order of acquittal of Respondent No.1 as a result of
                    order dated 05.04.2017 passed by the Jt. Judicial Magistrate First
                    Class, Nashik in S.C.C. No.3119 of 2011 by which the complaint was
                    dismissed for default.

                    3.       Learned Counsel for the Applicant submitted that for only
                    absence on two days (stated in the impugned order), the complaint
                    has been dismissed while the earlier roznama shows that the
                    complaint was diligently attended.

                    4.       Learned Counsel for Respondent No.1 – accused submitted that


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the amount of octroi has already been paid, however, only on the
issue of penalty, the complaint was filed in 2011 and which remained
pending for a long time and the witness for the Petitioner
Corporation himself did not remain present for cross examination,
therefore the complaint was rightly dismissed for default.

5.     I have considered the rival submissions and perused the record.

6.     Respondent-Accused has been acquitted way back in April
2017. The complaint itself shows that Respondent No.1-accused had
paid the octroi dues amount of Rs.1,62,268/- by a cheque and after
its recovery, a demand notice was sent charging 10 times penalty. On
an allegations that the penalty amount was not paid, the complaint
was filed under Sections 398, 399 and 481 of the Bombay Provincial
Municipal Corporations Act, 1949 (as it then existed) and Rule 40 of
Nashik Municipal Corporation (Octroi) Rules, 2005.

7.     I have perused the roznama. It appears that the Petitioner had
filed an Affidavit of examination in chief and Documents in March
2016. It further appears that from December, 2016 onwards,
Respondent No.1 accused was not present; therefore, bailable
warrant was issued. After securing the presence of Respondent No.1,
the representative of the Petitioner – Municipal Corporation or its
witness remained absent on 22.02.2017 and 08.03.2017. On these
two dates, the accused was present, however, the Applicant was not
present.

8.     Learned Magistrate has already considered the long pendency
of the complaint and the fact that it was was not further prosecuted

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on the said two dates. From the roznama, as explained above, it
appears that the Petitioner – Complainant or his witness was not
present for cross-examination. Therefore, the complaint has been
dismissed for want of prosecution.

9.     Considering the nature of offence involved and the fact that
the octroi amount has already been paid and further considering the
fact that the Municipal Corporation, despite having its staff and
machinery at its disposal, did not prosecute the complaint and did
not keep the witness present for cross-examination, the order of
dismissal passed by the Magistrate does not require interference.

10.    In that view of the matter, no case for leave is made out.

11.    The Criminal Application is rejected. Leave is refused.




                                              (M.M. SATHAYE, J.)




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