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2004 DIGILAW 366 (PNJ)

Shiv Kumar v. Lajwanti

2004-03-24

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - The instant revision petition is directed against the orders dated 9.12.1998 passed by Chief Judicial Magistrate, Faridabad vide which the complaint filed by the petitioner under section 420 Indian Penal Code has been dismissed for non-prosecution and the respondent has been discharged. 2. The order dated 27.3.2003 reveals that both the parties were referred to the Lok Adalat for settlement. Ultimately, the present revision petition was admitted by this Court on 18.9.2003. No one has appeared on behalf of the respondent. However, Mr. P.K. Mutneja has rendered assistance to this Court on behalf of the petitioner in disposing of the present revision petition. 3. Mr. Mutneja contends that initially a complaint under Section 420 Indian Penal Code was filed in September, 1990 and the process was issued against the respondent after recording the preliminary evidence. Thereafter precharge evidence was also recorded and vide order dated 10.6.1993, the learned Magistrate had discharged the respondent under section 245 Criminal Procedure Code It is then submitted that thereafter the present petitioner knocked the doors of the revisional court and the said revision was allowed in September, 1996 vide which it was observed that the evidence available on the file was sufficient to show prima facie case for the purpose of charge under section 420/406 Indian Penal Code. However, the respondent thereafter filed a revision in the High Court and the same was decided in January, 1997 observing therein that the Sessions Court has no power to direct the framing of charge and the only direction for further inquiry could be passed. Consequently, directions were given to the trial Court for holding further inquiry. The learned counsel then contends that thereafter the petitioner appeared before the trial court for the purpose of precharge evidence and ultimately it was closed by the order of the Court and 23.10.1998 was fixed for arguments on the charge. On that day, the case was adjourned for 9.11.1998. Thereafter also the case was adjourned by the trial court as the petitioner who was unwell and had asked for the exemption of personal appearance. When on 9.12.1998, the petitioner could not appear, the impugned order was passed dismissing the complaint for non-prosecution on account of absence of the complainant and the accused-respondent was discharged. 4. Thereafter also the case was adjourned by the trial court as the petitioner who was unwell and had asked for the exemption of personal appearance. When on 9.12.1998, the petitioner could not appear, the impugned order was passed dismissing the complaint for non-prosecution on account of absence of the complainant and the accused-respondent was discharged. 4. The learned counsel for the petitioner has drawn my attention to the impugned order which is on page No. 11 of the paper book and submitted that the learned Magistrate has erroneously jumped to the conclusion that the petitioner intentionally absented himself and was not interested in pursuing the complaint whereas the petitioner was pursuing the complaint sincerely for the last eight years but for the reason that he could not appear on 2/3 dates on account of his ailment. It is then submitted that the learned Magistrate was even otherwise not justified in discharging the respondent without recording the finding that the presence of the petitioner (complainant) on the said date was in fact necessary. According to the learned counsel, the evidence was already concluded and the matter was fixed for arguments and in this eventuality the learned trial court instead of discharging the accused on account of absence of the petitioner and dismissing the complaint for non- prosecution could very well decide the case on merits on the point of charge especially when the counsel for the complainant was present in the court and had even moved an application for exemption of personal appearance of the complainant. The impugned order is, thus, liable to be set aside, the learned counsel so contends. 5. After hearing the learned counsel for the petitioner and perusing the record, I am of the view that there is force in the submissions made by the learned counsel. The order of learned trial court is patently unsustainable in the eyes of law and deserves to be set aside. The petitioner who was pursuing his case for long eight years would not at all choose to absent except for certain compelling circumstances. I have seen the zimini orders reproduced in the grounds of revisions and from the said orders it reveals that on 9.11.98 the personal appearance of the petitioner was exempted as he was not well and thereafter the case was adjourned for 16.11.1998. I have seen the zimini orders reproduced in the grounds of revisions and from the said orders it reveals that on 9.11.98 the personal appearance of the petitioner was exempted as he was not well and thereafter the case was adjourned for 16.11.1998. On that day, the advocates were on strike but an application was again moved seeking exemption once again alongwith a medical certificate regarding the illness of the petitioner. The said application was allowed by the court. Thereafter the case was adjourned for 9.12.98 for arguments. On 9.12.98 also an application was moved on behalf of the petitioner through his counsel appearing for him in the trial court on the ground of illness and the same was, however, opposed by the other side on the ground that intentionally the complainant is dragging the accused. The learned trial court did not agree to allow the application on the ground that it is not supported by any affidavit or by the medical certificate of the complainant and as such considered the said absence as deliberate one and dismissed the complaint for non- prosecution. The flash back of the events indicate that both the sides had been fighting at different levels even upto this Court when the respondent was ordered to be charged by the revisional court and in this eventuality it cannot be said that the petitioner was unnecessarily dragging the respondent without any cause. In the back drop of the aforesaid facts, in my considered view, the present case needs decision on merits. Consequently, the present revision petition is allowed and the impugned order dated 9.12.98 is hereby set aside. 6. Both the parties are now directed to appear before the trial court on 30.4.2004 on which date the learned trial court would revive the case from the stage where it was left. 7. Since no one has appeared for the respondent in this case, the learned trial court after the receipt of the order from this Court would issue notice to the respondent apprising her of the date. 8. Office is directed to send the copy of the judgment to the trial court without any delay. Petition allowed.