HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL APPEAL No. - 352 of 1983 Court No. - 87 HON'BLE ABDUL SHAHID, J. 1. Sri Sri Santosh Kumar Yadav, Advocate has filed Vakalatnama on behalf of opposite party which is taken on record. 2. Heard Sri D.S. Chauhan, learned counsel for the appellant and Sri Santosh Kumar Yadav, learned counsel for opposite party. Perused the record. 3. The criminal appeal has been filed against the impugned judgment and order dated 27.11.1982 passed by the learned City Munsif Magistrate-I Class, Bareilly, in Criminal Case No. 325 of 1982 (B.D.A. vs. Rajendra Prasad), under Sections 26(1) and 28(4) of the U.P. Urban Planning and Development Act, 1983, whereby the accused–opposite party has been acquitted. 4. Learned counsel for the appellant submits that the impugned judgment and order dated 27.11.1982, passed by the learned Munsif Magistrate, Bareilly, is illegal, arbitrary and against the weight of evidence available on record. It is contended that the learned trial court has failed to properly appreciate the oral as well as documentary evidence adduced on behalf of the prosecution and has recorded the finding of acquittal on erroneous and misconceived grounds. 5. It has further been submitted that the prosecution has successfully established the charges against the accused–opposite party under Sections 26(1) and 28(4) of the U.P. Urban Planning and Development Act, 1983. However, the learned trial court has ignored the material evidence available on record while arriving at the finding of acquittal. According to the learned counsel, the findings recorded by the trial court are perverse and contrary to the facts and the law applicable to the present case. Versus Counsel for Appellant(s) : Murli Dhar Counsel for Respondent(s) : AGA, T.S. Dabas Bareilly Development Authority .....Appellant(s) Rajendra Prasad .....Respondent(s) 6. Having considered the submissions advanced by the learned counsel for the appellant and upon perusal of the record, it transpires that the impugned judgment was delivered in the year 1982, and a considerable period of time has elapsed since then. 7. The proceedings were initiated by the Bareilly Development Authority against the opposite party, Rajendra Prasad, under Sections 26(1) and 28(4) of the U.P. Urban Planning and Development Act, 1973 (as amended in 1976). The learned trial court elaborately discussed the evidence produced before it. 8. The learned trial court specifically held that the complaint (Ext. Ka-1) was filed by Jitendra Kumar Gupta on behalf of the appellant, Bareilly Development Authority, and he was also the pairokar in the case. Therefore, it was necessary that the said person be produced before the court as a witness. This was not difficult, as P.W.-1 deposed in his cross- examination that Jitendra Kumar Gupta was working as an Assistant Engineer in the P.W.D., Nainital. Thus, he was a material witness who could have been produced by the Bareilly Development Authority by summoning him before the court. He was the best person to verify and prove the contents of the complaint. However, no such steps were taken. The said material witness was not produced before the court willfully and deliberately. The learned trial court presumed that if this witness had been produced before the court, an adverse inference could have been drawn against the complainant under Section 114(g) of the Evidence Act, 1872. 9. As per the complainant, the first inspection took place on 02.07.1981, when Rakesh Sharma, Assistant Engineer, allegedly saw the disputed construction and submitted his report to his superior officers stating that certain constructions had been raised in violation of the provisions of law. According to the averments in the complaint, on the basis of that inspection, an order dated 02.07.1981 was issued directing stoppage of construction, which has been exhibited as Ext. Ka-5. However, the said document is only a photocopy of the order. 10. The learned trial court clearly observed that the report of Rakesh Sharma dated 02.07.1981 is not on record. Instead, the report filed before the court is Ext. Ka-4 dated 15.07.1981. The basic report dated 02.07.1981 has not been filed before the court. Hence, it may be presumed that the complainant willfully and deliberately did not file the said report before the court of law. The said report could have been read as proper and admissible evidence against the accused persons. CRLA No. 352 of 1983 2 11. The learned trial court further observed that there is no satisfactory proof on record regarding service of the order for stoppage of construction. Only oral evidence has been produced before the court, and no documentary evidence has been filed by the Bareilly Development Authority to prove that the order directing stoppage of construction was duly served upon the opposite party. The order for stoppage of construction (Ext. Ka-5) is only a photocopy, and the original copy has not been filed before the court. 12. The learned trial court also observed that secondary evidence is admissible only when the concerned party proves that the original or primary evidence has been lost and it is absolutely not possible to recover the same. Only thereafter can secondary evidence be produced. However, no such evidence has been produced by the Bareilly Development Authority on record to establish the loss or unavailability of the original documents. 13. It is a fundamental principle of law that the plaintiff must prove his case on the basis of preponderance of probabilities, and the burden of proof lies upon the plaintiff. In criminal cases, the burden of proof lies upon the complainant to prove the case beyond reasonable doubt. In the present case, neither the original inspection report dated 02.07.1981 is on record nor the original order directing stoppage of construction dated 15.07.1981. Moreover, there is no proof of service of the said notice upon the opposite party to show that it was duly served on him. 14. Thus, the complainant has failed to discharge the burden of proof that lies upon his shoulders. Consequently, the impugned judgment and order dated 27.11.1982 passed by the learned City Munsif Magistrate, First Class, Bareilly, in Criminal Case No. 325 of 1982 (B.D.A. vs. Rajendra Prasad) is having no illegality. 15. In view thereof, the criminal appeal is liable to be dismissed and it is dismissed accordingly. March 9, 2026 M. Tarik CRLA No. 352 of 1983 3 (Abdul Shahid,J.) Digitally signed by :- MOHD TARIK High Court of Judicature at Allahabad