JUDGMENT - S.M. HAJARNAVIS, J.:---This is an appeal under section 417 of the Code of Criminal Procedure against the judgment delivered by the Judicial Magistrate, First Class, Nasik Road, acquitting the respondents Nos. 1 and 2 of the offences punishable under section 189(8) (9) of the Maharashtra Municipalities Act, 1965 (hereinafter called as the “Municipal Act”). The appellant filed a complaint in the Court of Judicial Magistrate, First Class, Nasik Road, alleging that the respondents Nos. 1 and 2 have erected a construction without obtaining prior permission of the appellant. The appellant came to know about the structure for the first time on 6th May, 1971. A notice was issued on 12th May, 1971 against the respondents calling upon them to stop further construction and to remove the unauthorised construction within 15 days from the receipt of the notice. The respondents did not comply with the requirements of the notice and the appellant, therefore, filed a complaint before the Magistrate on 9th October, 1971. The respondent appeared before the learned Magistrate after the receipt of a summons. Particulars of the offence were explained to them. The accused pleaded not guilty. The appellant examined two witnesses, one of them being a Building Inspector. The Building Inspector stated that he came to know that the accused had given notice to the appellant for permission to erect a structure. He stated that the permission was not granted as necessary documents were not filed by the accused. He stated that on 6th May, 1971, he visited the spot and found that the construction was going on. He, therefore, submitted a report to superior officers on 7th May, 1971. On 12th May, 1971, a notice was sent to the accused by registered post. He filed acknowledgments of accused Nos. 1 and 2. He has been cross-examined at length but nothing has come out in his cross-examination which in any way affects his testimony and, therefore, his evidence should have been and has been accepted by the trial Court. The other witness was the panch witness. The evidence of this witness clearly establishes that the accused have started the construction without obtaining prior permission of the Municipality. The other witness was the panch witness. The evidence of this witness clearly establishes that the accused have started the construction without obtaining prior permission of the Municipality. The learned Magistrate did not record finding on this point and he seems to have not recorded the finding because the only point on which the arguments seem to have been advanced was that the copy of the sanction filed by the appellant shows that it was on 12th February, 1971 that the notice was issued to the accused for removing the structure and, therefore the complaint was lodged 6 months after the alleged commission of or the detection of the offence. Reliance was place on sub-section (2) of section 296 of the Municipal Act by the accused and they argued that the suit was filed six months after the commission of the offence and, therefore, the complaint was barred by limitation. This submission was accepted by the learned Magistrate. He held that the notice for demolition was given by the appellant on 12th February, 1971 and the complaint was filed on 9th October, 1971, that is more that six months after the alleged offence was detected. He, therefore, hold that the complaint was barred by time and the prosecution was illegal and acquitted the accused. It is against this judgment that the present appeal has been filed after obtaining special leave under section 417 of the Code of Criminal Procedure. It cannot be disputed that the respondents Nos. 1 and 2 have erected a construction without obtaining prior permission of the Municipality. The respondent No. 1 had admitted that the notice by the appellant was received by him. The respondent No. 2 has, however, denied the statement that she had received the notice There is categorical statement of the complaints witness No. 1 that notice was issued on 12th May, 1971 against the respondent No. 2 and that it was sent by registered post and that it was received by her. He also stated that the acknowledgement bore the thumb mark of the respondent No. 2 There was no cross-examination on this point of the witness. Therefore, it cannot be said that she has not received the notice issued by the Municipality on 12th May, 1971 merely because she has denied in her statement to her having received the notice. He also stated that the acknowledgement bore the thumb mark of the respondent No. 2 There was no cross-examination on this point of the witness. Therefore, it cannot be said that she has not received the notice issued by the Municipality on 12th May, 1971 merely because she has denied in her statement to her having received the notice. It is clear that the notice issued by the appellant on 12th May, 1971 was received by the respondent No. 2. In view of this evidence of the complainants witness, the learned Magistrate ought not to have held that the notice was issued by the appellant on 12th February, 1971. Reading of the notice and report which was submitted to the President by the Chief Officer there cannot be any doubt that it was wrongly mentioned in the report that notice No. LND 505 was issued on 12th February, 1971. It is because of this mistake that in the sanction itself it is mentioned that the accused were given notice on 12th February, 1971. Really speaking, the notice was issued on 12th May, 1971. The learned Magistrate therefore, was in error in holding that the appellants came to know about the commission of offence on 12th February, 1971. The evidence and the documents show that it was in the month of May 1971 that the construction was detected by the appellant for the first time. If that be so, the learned Magistrate has committed an error in holding that the complaint was barred by time. In view of this finding, the question whether it was a continuing offence or not is really a matter of academic interest. It is true that the Magistrate has observed that this was not a continuing offence but, in my opinion, here again the Magistrate seems to have committed a mistake. The grievance of the appellant was that the respondents Nos. 1 and 2 have not complied with the notice issued to them for removal of the structure within 15 days as required by the Municipality. Even if the Magistrate was right in holding that the notice was issued in February 1971, the Magistrate ought to have seen that non-compliance of the requirements of the notice means continuing to commit an offence every day. Even if the Magistrate was right in holding that the notice was issued in February 1971, the Magistrate ought to have seen that non-compliance of the requirements of the notice means continuing to commit an offence every day. The respondents cannot get a licence to continue to front the directions issued by the appellant even if the appellant did not take action for non-compliance for six months. The respondents relied on the decision of the Division Bench of this Court in (Emperor v. Bochardas Narotamdas Munshi)1, 32 Bom.L.R. 768(D.B.) where this Court has observed :--- “Failure to remove a building in respect of which a person has been convicted under section 123(7) or 118(4) of the Bombay City Municipalities Act is not a “continuing contravention” within the meaning of those sections. Limitation for a prosecution for a continuing offence runs from the time when the offence is first committed; or where the offence consists in the failure to remove a building after conviction, from the data of the conviction.” In my opinion that case has no application at all because that was not the case of non-compliance of directions. The learned Public Prosecutor has invited my attention to subsequent decision of the Division Bench of this Court in (State of Bombay v. Devraj Tulsi)2, 54 Bom.L.R. 40(D.B.) where the abovementioned was considered and distinguished. This Court has observed : “The learned Judges hold that failure to remove the building under those circumstances was not a continuing contravention. But in so far as the point of limitation was concerned, they were of the opinion that limitation for a prosecution for a continuing offence runs from the time when the offence is first committed. The grounds given by Mr. Justice Broomfield at page 781 are clear and categoric in this behalf, with the utmost respect to the learned Judges, there was no warrant for introducing the words “the first” before “commission of such offence” and reading the section which was in express terms “within three months next after the commission of offence” as meaning “within three months next after the first commission of such offence”. The phrase “continuing offence” has been the source of a great confusion of thought. An offence is committed the moment certain ingredients or conditions are fulfilled. The phrase “continuing offence” has been the source of a great confusion of thought. An offence is committed the moment certain ingredients or conditions are fulfilled. The terms of an order may not be complied with and the moment these terms are not complied with within the period prescribed in this behalf, there would certainly arise the commission of an offence by the offending party. He has failed to comply with the terms of the order and he has committed the offence. In those cases, however, where the offence is a continuing offence, the question that may arise for consideration of the Court would be whether it is the same offence which is being continued for all the time or whether at each period of time denoted by a second or an hour or a day or a week or a fortnight or a month or a year, fresh offences are committed one after the other. To my mind it is a misnomer to say that fresh offences are committed at each period of time when particularly the non-compliance of the order which constitutes the offence is the omission to do an act which has been ordered to be done. It may be that where a positive act is ordered to be done, a case or cases may arise where by reason of the breach of the terms of the order you may have commission of a series of offences from day to day, just as it happened in the case before Chief Justice Beaumount and Mr. Justice Wassoodev in Emperor v. Karsandas Govindji where the offence which the accused was charged with having committed was working a factory contrary to the provisions of the order. For each day that the factory was working there was a breach of the terms of the order, and therefore, it could be said in such a case that for each day that the factory was working, a distinct offence was committed.” The Division Bench was of the opinion that the non-compliance of the order was a continuing offence. Here, in this particular case the respondents Nos. 1 and 2 were asked to remove the structure which they have not done and, therefore, they continued to commit an offence every day. The learned Magistrate was not, therefore, right in holding that this was not a continuing offence. Here, in this particular case the respondents Nos. 1 and 2 were asked to remove the structure which they have not done and, therefore, they continued to commit an offence every day. The learned Magistrate was not, therefore, right in holding that this was not a continuing offence. In the result, the appeal is allowed and the acquittal of the respondents is set aside. The respondents Nos. 1 and 2 are convicted under section 189(9), of the Municipal Act and they are fined Rs. 5/- each, or in default of payment of fine, to suffer simple imprisonment for one week. The Municipality should examine how for the structure contravence the bye-laws framed by the Municipality. If the public health and hygiene is not affected, the Municipality may take a lenient view of the matter and should not insist on demolition of the structure. -----