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2003 DIGILAW 647 (ORI)

Bimal Kishore Mohapatra v. Sridhar Nayak

2003-11-06

A.S.NAIDU

body2003
JUDGMENT A. S. NAIDU, J. — This is an application under Section 378(4) of the Code of Criminal Procedure, 1973 seeking leave to appeal against an order of acquittal passed by the learned S.D.J.M. (S), Cuttack in ICC No.37 of 1996. 2. The petitioner as complainant filed the aforesaid Complaint Case inter alia praying to prosecute the opposite party for alleged commission of defamation, punishable under Section 500 of the Indian Penal Code. It was alleged that the opposite party had written a letter to the authorities of the complainant blackmailing and defaming him. In the Complaint Case cognizance of the offence was taken on 6.2.1996 and summons was issued to the accused. But then, it appears from the ordersheets that the complainant was not ready to prosecute the case till 1999. Ac¬cording to the complainant, all his attempts to obtain the letter dated 14.8.1995 to establish his allegations proved futile. In the year 1999 the trial of the case commenced. On 27.9.1999 the complainant-petitioner was examined in part and at his instance the case ws adjourned to 29.10.1999 and then to 6.12.1999 and again to 13.12.1999. In spite of sufficient oppor¬tunity being given to the complainant by the Court below, the complainant remained absence on 13.12.1999, as a result of which his evidence could not be recorded. On 13.12.1999 a petition was filed by the learned counsel for the complainant taking a plea that the complainant being ill as he was suffering from headreel¬ing he was not able to attend the Court. In support of such plea no medical certificate had been produced. The accused-opposite party forcefully denied the plea of illness of the complainant and stated before the Court below that only in order to prolong the case and thereby causing harassment to him, the complainant was adopting dilly dally tactics and that way the Complaint Case was pending for the three years since 1996. 3. The trial Court after hearing the counsel observed that the complaint was partly examined on 27.9.1999 and in spite of direction of the Court he did not turn up on subsequent dates though liberal adjournments were given to him. 3. The trial Court after hearing the counsel observed that the complaint was partly examined on 27.9.1999 and in spite of direction of the Court he did not turn up on subsequent dates though liberal adjournments were given to him. Considering the fact that the case related to an offence under Section 500 IPC and it was a summons triable case; the Complaint Case was pending for more than three years and further though sufficient time had been given to the complainant to adduce his evidence, he failed to attend the Court, the Court below rejected the petition of the complainant filed under Section 317 CrPC and directed the com¬plainant to be ready for further evidence on 13.12.1999. In spite of the aforesaid order, as the complainant did not appear in Court to give his evidence, the Court below acquitted the ac¬cused-opposite party under Section 256 of the Code of Criminal Procedure. The said order is impugned in this Criminal Misc.Case. 4. Mr. Kar, learned counsel for the petitioner, forcefully submitted that the Court below has not properly exercised its power and the order of acquittal of the accused-opposite party is not just and proper. He also submitted that the Court below should have granted some more time to the complainant. But then it appears from the ordersheets that the Complaint Case was pending since 1996. The complainant after being examined in part for two days, did not appear in Court thereafter and therefore recording of his further evidence was deferred on several dates. 5. After going through the impugned order, I find that the Court below has not committed any irregularity. The order of the Court below was perfectly just and proper. In fact adequate opportunity was given to the complainant to prove his case but he totally failed to avail of the said opportunity. I am therefore not inclined to grant leave to appeal against the order of the Court below as prayed for. The Criminal Misc.Case is dismissed. Crl. Misc. case dismissed.