JUDGMENT - BHOLE, J.:---The petitioners are the employees of the Bombay Municipal Corporation and they are accused by respondent No. 1 Asharam M. Jain, Managing Director of M/s. Jain Brothers Vyapar Private Ltd. of having committed theft of the building material after breaking his building open on 17-3-72. Petitioner No. 1 is the Assistant Engineer, petitioner No. 2 is sub-overseer and petitioner No. 3 is the overseer of the Bombay Municipal Corporation. It appears that the officers of the Municipal Corporation detected an unauthorised construction of nine shops on 5-1-71. The unauthorised construction was going on in the property of respondent No. 1. Because it was unauthorised, therefore a notice under section 351 of the Bombay Municipal Corporation Act was served on respondent No. 1 and he was asked to show cause why the structure should not be demolished. Respondent No. 1 replied that he was paying taxes for those structures and that those structures were duly assessed. The Municipal Corporation denied having assessed any of those unauthorised structures. 2. Because respondent No. 1 did not respond to the notice served by the Municipal Corporation, therefore, the Municipal Corporation sent its own employees escorted by a Sub-Inspector of Police and two constables on 17-3-72 for the purpose of demolishing the unauthorised structures. After making an inventory of all the articles, they were deposited in the Municipal Depot. The result of all this was a criminal complaint by respondent No. 1 on 21-3-72 against the present petitioner under section 379 read with section 109 I.P.C. The learned Presidency Magistrate before whom the complaint was lodged sent it for inquiry under section 202 of the Criminal Procedure Code to the police. The police reported that the act of demolishing of the property as well as the removal of the same was legal and that no offence of theft had been committed by the petitioners. It was also stated in the report of the police that before the removal of the building material the Bombay Municipal Corporation authorities had made an inventory and had entered the material into the depot book maintained at the depot. The learned Magistrate inspite of this report issued notices to both the parties and after hearing the issued process against the present petitioners under section 379 read with section 109 I.P.C. The petitioners, therefore, are challenging the order in revision. 3. The learned Magistrate inspite of this report issued notices to both the parties and after hearing the issued process against the present petitioners under section 379 read with section 109 I.P.C. The petitioners, therefore, are challenging the order in revision. 3. The learned Magistrate has not mentioned a single word about the police report and their conclusion. He has therefore, not given a single reason why he was not accepting the conclusion reached by the police. The learned Magistrate, however, in his own way dealt with the validity of the notice under section 351 of the Bombay Municipal Corporation Act and came to the conclusion that the notices served under section 351 of the B.M.C. Act were illegal. It must be mentioned that responder No. 1 in his complaint has completely suppressed the service of notice on him. On the other hand he has mentioned that the structures were demolished without any notice. The notices which were served under section 351 I.P.C. are however on record. They were duly served and the explanation was considered and after that the unauthorised structures were demolished. I would merely mention that his interpretation of the validity of the notice is open to question because he has without considering the implication of section 347 of the Bombay Municipal Corporation Act considered section 68 of the said Act which deals with the powers the commissioner to be exercised by the subordinate Municipal officers. 4. The other reason given by the learned Magistrate was that petitioner No. 1 holds a grudge against the complainant. He seems to have strangely come to such a conclusion without any evidence on record. The only circumstance appears to be that there was a complaint by respondent No. 1 against petitioner No. 1 and others in similar circumstances and against the officers of the Municipal Corporation. If a person unauthorisedly constructs some structure and if an officer of the Municipal Corporation takes action against that person for that unauthorised act and if that person afterwards files a complaint against the Municipal Officer and if the same person again commits another breach and if the Municipal Corporation takes action against him, it can never by any stretch of imagination be said that those officers had some grudge against that person. The officers were doing their duty according to law. The officers were doing their duty according to law. It is worthwhile to mention here that petitioner No. 1 was not even present at the time when the other officers of the Municipal Corporation demolished the unauthorised structures of respondent No. 1. Inspite of his absence the complainant seems to have dragged him also as an accused in this complaint. The third reason given by the learned Magistrate is on the basis of the recitation in the complaint itself and that is that the material which has been entered into the register kept in the municipal depot was less than what was actually removed. Surely this also cannot be the basis of issuing process. 5. The point that is important here is whether there was sufficient ground for the Magistrate to take cognizance of the offence complained of by respondent No. 1. In other words whether there was any prima facie evidence to show that the petitioners had committed any offence of theft. There must be prima facie evidence that these officers of the Municipal Corporation intended to take away dishonestly the building material after demolishing the unauthorised buildings without the consent of respondent No. 1. In other words the officers must be presumed to have wrongfully gained this property. Is there any evidence on this? Admittedly the notices were served on respondent No. 1 and his explanation was considered and rejected. The officers sought the help of the police authorities and after going to the site they pulled down the unauthorised structures in the presence of the policemen. They made an inventory of all the buildings material and collected the same in their own depot. Can it be said that there was any dishonesty on the part of these officers to commit such offence? In my view the learned Magistrate was in error when he came to a contrary conclusion without any prima facie case. He seems to have misled himself on the basis of his own conclusion about the validity of the notice and arrived at this wrong approach on a wrong conclusion. In my view the learned Magistrate was in error when he came to a contrary conclusion without any prima facie case. He seems to have misled himself on the basis of his own conclusion about the validity of the notice and arrived at this wrong approach on a wrong conclusion. Moreover under section 76 of the Indian Penal Code nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do petitioner No. 1 was not even present. The other petitioners, even if it is presumed for moment that they have done so, did that act in good faith believing that they were bound by law to do it. Under section 114 of the Evidence Act all official acts regularly performed by officers are presumed to have been regular performed. 6. Mr. Golwala contends here that the notices were illegal and, therefore, they were committing illegal acts. Even that interpretation is open to question and even if it is presumed that they had committed some act which is illegal, they were doing so in good faith and they had to do the act because they were bound by law to do it. Mr. Golwala further says that the petitioners at any rate should not have take away the building material after pulling down the structures. According to him the petitioners had committed an offence of theft because they had taken the building material away from the spot and kept them in the municipal stores. It is said that the complaints servants asked them not to take away and yet they took away all the building material. Can it be said that they had removed the building material for their wrongful gain? The answer would be in the negative. Can it be said that they had done so dishonestly? That also has to be answered in the negative. Everything was done in the presence of the Police Officers and an inventory also was made of the building material. They kept the material for safe custody for and on behalf of respondent No. 1 on the depot. That act also, in my view, cannot prima facie be said to be enough to warrant issue of process. Mr. Everything was done in the presence of the Police Officers and an inventory also was made of the building material. They kept the material for safe custody for and on behalf of respondent No. 1 on the depot. That act also, in my view, cannot prima facie be said to be enough to warrant issue of process. Mr. Golwala invites my attention to (Mahendra Pratap Singh v. Sarju Singh and another)1, 1968(II) S.C.J. 193 and says that ordinarily a High Court should not interfere with the discretion of a Presidency Magistrate unless there is manifest illegality in the order of the Court. It appears to me that the learned Magistrates order is not based on any material at all. The material prima facie is to the contrary and the error is, therefore, apparent on the face of record. It appears to me, therefore, that the order to issue process would inflict serious and substantial injustice on the petitioners. 7. I, therefore, allow the revision application of the petitioner, set aside the order passed by the learned Presidency Magistrate and dismiss the complaint. -----