- (1.) THIS is an application under Section 439 of the Code of Criminal Procedure by one Bhabataran Chatterjee accused petitioner who has been found guilty under Section 513 read with Section 500 of the Bengal Municipal Act, 1932, convicted and sentenced under those sections to pay a fine of Rs. 40/- and in default to suffer simple imprisonment for a week by the Judicial Magistrate, first class, Chandernagore on 25. 11. 1969. The revisiorial application has been opposed by the opposite partychandernagore Municipal Corporation through the complainant Dinanath duttaan employee. The learned magistrate found that one Bejoy Gopal chatterjee is the owner of the house situated in the revisional survey plot no. 865 of Mouza Chandernagore. Contiguous to the south of his house runs rabindra Nath Thakur Road within R. S. plot No. 888. The accused is one bhabataran Chatterjee son of Bejoy gopal Chatterjee and he is neither the owner nor the occupier of plot No. 865 the case of the prosecutionchander--nagore Municipal Corporation was that there exists a katcha drain imme diately to the north of Rabindra Nath thakur Road which passes in betweem the said road and the premises of Bejoy gopal Chatterjee within R. S. plot No. 865. After describing the course of the drain the learned Magistrate observed in his judgment as follows : "it passes in front of the house of the father of the accused to fall in another pucca drain situated contiguously to the east of the house of the father of the accused. The prosecution case is that the accused filled up the katcha drain, situated in front of his house with rubbish and earth. As a result filthy water of the house situated contiguously to the West of the house of the accused started coming down upon the Rabindra Nath thakur Road. There was a complaint in this regard (Ext. 9 and 1), and ultimately Dinanath Dutta conservancy supervisor under Chandernagore Corporation was duly ordered by the Municipal authorities to clear up the drain (Ext. 1|2 and 1|3 ). Shri Dutta (P. W. 1)went to the spot on 4. 7. 1967 along with three coolies, of whom Laldhari Bhuniya was one to clear up the passage of the drain. He was obstructed by the present accused in discharging his duties. The accused, as it is alleged, abused him in filthy language and threatened him with dire consequences if he proceeded with clearing up of the passage of the drain. As a result Shri Dutta had to go back without doing the needful in this regard and he lodged a complaint before the Administrator of the municipality detailing all the facts therein. "
(2.) SO the Criminal case No. 995 of 1967 was filed over the occurrence by the Municipality under Section 513 of the Bengal Municipal Act before the court of the learned Magistrate. The prosecution examined P. W. 1 Dinanath dutta, P. W. 4 Laldhari Bhuniya, P. W. 5 ushanath Chatterjee and P. W. 6 Gui-ram Pal and other prosecution witnesses, 8 in all in number. The defence examined one witness D. W. 1.
(3.) THE defence of the accused was that no drain existed at the locale. To support this came one Debendra Nath guhad. W. 1 a surveyor. The learned magistrate found relying on the evidence of Dinanath Dutta, Chaitanya mallik and Laldhari Bhuniya that in fact the drain existed at the locale as the prosecution contended. As the existence of the drain the learned Magistrate referred to an application Exhibit 4 and the plan Exhibit 5 which one bejoy Gopal Chatterjee presented before the municipal authorities for permission to construct a house on the land in R. S. plot No. 865. The learned Magistrate found that on the plan there was no signature of the father of the accused. So the worth in evidence of the plan exhibit 5 could not impress the Magistrate but still relying on the oral evidence he found the existence of the drain. The accused in defence examined D. W. 1 to impress upon him that the drain did not exist. Considering the evidence of this witness the learned Magistrate observed as follows: "he claims to have relayed the plot. He has prepared no case map, no field book. He admits that correct result cannot be arrived at without two fixed points. His re'ayment is quite unreliable. ";