PRASHANT KUMAR AGARWAL,J. - (1.) Aggrieved with the judgment and order dated 19.10.2011 passed by the Additional Chief Judicial Magistrate No.1, Jaipur Development Authority in Criminal Case No.132/2009 whereby the accused-respondent-Shri Ram Gopal Gupta was acquitted for the offences under Sections 31 (1), 32 (7) and for offence under Section 33 (2) of the Jaipur Development Authority Act, 1982 (hereinafter to be referred as "the Act"), the appellant has filed this criminal appeal under sub-section (4) of Section 378 Cr.P.C. It is to be noted that leave to appeal was granted vide order dated 29.1.2014.
(2.) Brief relevant facts for the disposal of this appeal are that a complaint under Section 75 of the Act was filed by the Enforcement Officer, JDA, Jaipur against the accused-respondent for the aforesaid offences on 8.5.2009 with the averment that respondent has undertaken development on Plot No.9 situated at Chhayadeep-II Colony within the area of Police Station Mahesh Nagar, Jaipur in violation of the bye-laws prescribed by the Jaipur Development Authority and without its permission. It was further averred that a notice under Section 31 (1) of the Act was served upon the respondent on 30.3.2009 with the direction that the illegal development undertaken by him should be stopped immediately and if he has any objection to it, he may appear before the competent officer and can file objection before him but the respondent neither stopped illegal development on the aforesaid plot till 27.4.2009 nor any objection/explanation was filed. It was further averred in the complaint that the illegal construction undertaken by the accused-respondent is still present on the plot which is liable to be removed. Along with the complaint some documents were also filed. Learned trial Court took cognizance against the respondent and after his appearance before it, on 20.7.2009 summary of charge was read over to him which was denied. In order to prove the charge against the respondent, complainant-Jaipur Development Authority produced oral as well as documentary evidence whereas respondent in his statement recorded under Section 313 Cr.P.C. denied the evidence produced on behalf of the complainant and specifically stated that he did not undertake any illegal construction and in defence respondent-accused himself appeared as witness. Learned trial Court after considering the submissions made on behalf of the respective parties and appreciating and evaluating the evidence made available on record acquitted the respondent-accused. Feeling aggrieved, appellant-Shri Mahesh Goyal is before this Court by way of this appeal. It is to be noted that appellant is neighbour of respondent-accused being owner and resident of Plot No.8 which is situated on the southern side of the plot in dispute and it is appellant who initially lodged complaint more than once before J.D.A. when development/construction work was undertaken by the accused-respondent on his plot and it is on the basis of the complaints made by the appellant, J.D.A. initiated action against the respondent and filed complaint before the trial Court. It is to be noted that appellant was not made a witness in the case and he was also not examined during trial. It is further to be noted that Jaipur Development Authority has not filed appeal against the impugned judgment and order. It is also to be noted that an application under Section 391 Cr.P.C. was filed by the appellant with a prayer to take on record documents filed along with it as additional evidence. However, reply to the application was not filed on behalf of the respondent and along with the appeal order on this application is also to be passed. In the course of hearing of the appeal in compliance of the order dated 15.9.2015, Jaipur Development Authority filed a report dated 6.10.2015 showing the development/construction work undertaken on the plot in dispute in violation of the bye-laws prescribed by the Jaipur Development Authority. Apart from that, this Court vide order dated 8.3.2016 appointed advocate Shri A.K. Bhargava as commissioner to inspect the site in dispute and file his report and in compliance of the same Shri Bhargava filed his report dated 13.3.2016 along with some photographs. Vide order dated 16.3.2016 liberty was given to the parties to file objections, if any, to the commissioner's report but no objections have been filed by any of the parties.
(3.) Before considering the appeal and the application under Section 391 Cr.P.C., it is appropriate to consider and decide the following two preliminary objections raised by the accused-respondent- (a) Appeal under Section 378 (4) Cr.P.C. is maintainable as remedy under proviso to Section 372 was available to the appellant to file appeal before the concerned Sessions Judge and (b) Complaint under Section 75 of the Act filed by the Enforcement Officer before the trial Court was maintainable as he was an authorised and competent person to file such a complaint.;