JUDGMENT 1. The judgment of absolviter dated 9.7.2007 passed by Judicial Magistrate, First Class, Ganj Basoda, District Vidisha in Criminal Case No.532 of 2004 (Nagar Palika Parishad, Ganj Basoda v. Anis Miya and others), acquitting the respondents herein/accused from the offence under section 223 of the Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as the Act) has been made pivot in this appeal filed by the Municipal Council, Ganj Basoda under sections 378 read with 377 of the Code of Criminal Procedure, 1973, after obtaining leave to file appeal. 2. Facts giving raise to this appeal, in brief, are that it is alleged by the Complainant/Municipal Council, Ganj Basoda that the land bearing Survey No. 440 is a drain (Nala) and belongs to it. The accused persons encroached upon an area of 15 x 25 Sq.feet out of the aforesaid survey number and without obtaining permission constructed a house over it. On 11.7.2002, a notice was served under section 223 of the Act for removing the encroachment. In spite of service of notice, the accused persons have not removed the encroachment and, therefore, a private complaint under sections 187(8) and 223 of the Act has been filed before the Judicial Magistrate, First Class, Ganj Basoda. 3. The learned Trial Judge on the basis of the material placed on record framed the particulars of the offence under sections 187(8) and 323 of the Act against all the three accused persons. The accused persons denied it and claimed to be tried. The defence of all the accused persons is of false implication and that they have constructed the house over Survey No. 426 which is their ancestral property and the same defence they set forth in their statements recorded under section 313 of the Code of Criminal Procedure, 1973. 4. To bring home the offence, the prosecution examined as many as 3 witnesses and placed Exhibits P/1 to P/4, the documents on record. The accused persons have examined Patwari, Suresh Sharma (DW 1) in their defence. 5. 4. To bring home the offence, the prosecution examined as many as 3 witnesses and placed Exhibits P/1 to P/4, the documents on record. The accused persons have examined Patwari, Suresh Sharma (DW 1) in their defence. 5. The learned trial Judge on the basis of evidence placed on record came to hold that offence under section 223 of the Act has not been proved against the accused persons as a result of which acquitted them from the said offence, however, the offence under section 187(8) of the Act has been found proved against them and, therefore, each of them have been sentenced to pay fine of Rs.1,000/-. The accused have not challenged the aforesaid sentence and, therefore, it has become absolute. 6. In this manner, this appeal has been preferred by the appellant/Municipal Council, Ganj Basoda assailing the judgment of acquittal passed by the learned trial Court after obtaining the leave to file appeal. 7. Legality and propriety of the impugned judgment has been challenged by the learned counsel for the appellant on the ground of misappreciation of the evidence on record. Learned counsel submits that looking to the evidence on record, it is proved that the accused persons have encroached over an area of 15 x 25 Sq. feet out of Survey No.440 and constructed a house over it without obtaining permission which has also been corroborated by the documentary evidence. Learned counsel further argued that the learned trial Court erred in acquitting the respondents, hence, this appeal be allowed and the respondents be convicted for the offence. 8. On the other hand, learned counsel appearing on behalf of the respondents supported the impugned judgment and findings arrived at by the learned trial Court and submitted that there was no evidence to prove that the respondents have encroached the land of Survey No. 440 belonging to the Municipal Council, Ganj Basoda. According to learned counsel, this appeal is having no merit and the same be dismissed. 9. In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to advert to the evidence available on record. 10. Admittedly, the land bearing Survey No. 440 is a drain (Nala) belonging to the Municipal Council, Ganj Basoda. It is also not in dispute that the land Survey No. 426 is of a private land. 11. 10. Admittedly, the land bearing Survey No. 440 is a drain (Nala) belonging to the Municipal Council, Ganj Basoda. It is also not in dispute that the land Survey No. 426 is of a private land. 11. According to Sunil Sharma (PW 3) who is SubEngineer in Municipal Council, Ganj Basoda, he went to the spot on 11.7.2002 and found that accused persons have encroached over an area of 15 x 25 Sq. feet out of Survey No.440 and constructed a house over it and, therefore, he prepared Panchnama (Ex. P/1) and Naksha (Ex. P/2) In paragraph 6 of his crossexamination, he stated that the land situated in Survey No.426 is adjacent to the drain (Nala) Survey No. 440 towards its northeast side. The area of Survey No. 440 and the area over which the encroachment made by the accused was not got measured through the Patwari. This witness has also not measured the area of Survey No. 440 and also does not know the place from where the area of Survey No. 440 begins and ends. In paragraph 7, this witness further stated that he himself is not sure that the place where the construction made by the accused is part of land Survey No. 440 or part of Survey No. 431. 12. In defence, the accused examined Suresh Sharma (DW 1) who is Patwari. According to him, on the instructions of the Tahsildar, Ganj Basoda, he measured the area over which the house of the accused, Anis Miya was constructed and after getting it measured, he found that the area where the construction of the house was made comes under Survey No. 426, prepared the panchnama D/2 and accordingly submitted the report (Exhibit D/1) to the Tahsildar, Ganj Basoda. 13. The learned trial Court after appreciating and marshalling the evidence of the prosecution found that the prosecution failed to prove that the accused persons have encroached over the area which is a part of land Survey No. 440. 14. On going through the reasonings assigned by the learned trial Court, I am of the considered view that the learned trial Court has rightly arrived at the conclusion. 15. I have gone through the judgment passed by the learned trial Court acquitting the respondents under section 223 of the Act and for that the learned trial Court did not commit any error in acquitting the respondents. 15. I have gone through the judgment passed by the learned trial Court acquitting the respondents under section 223 of the Act and for that the learned trial Court did not commit any error in acquitting the respondents. The learned counsel for the appellant could not point out how and in what manner the judgment of learned trial Court can be said to be erroneous and perverse. 16. It is well settled law that, if two views are possible on the same set of evidence, the view taken by the learned trial Court acquitting the accused should not be lightly brushed aside. In this context, I may profitably place reliance on the decision of the apex Court in the case of Arulvelu and another v. State represented by the Public Prosecutor and another, (2009)10 SCC 206 . Hence, by this judgment, I hereby extend the stamp of approval to the judgment of acquittal passed by the learned trial Court. 17. Resultantly, this appeal is found to be devoid of merit and substance, the same is hereby dismissed. The respondents are on bail, their bail bonds stand discharged.