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2007 DIGILAW 1635 (DEL)

DIRECTOR, DELHI LOTTERIES v. G. D. BANSAL

2007-08-16

SHIV NARAYAN DHINGRA

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( 1 ) THIS appeal has been preferred against the order dated 15th September, 2004 passed by learned Metropolitan Magistrate whereby the complaint of the appellant was dismissed and the accused persons were acquitted of the charges. It is submitted by the appellant that the Penal Lawyer failed to appear on behalf of the appellant without intimating the appellant. The case was being hotly prosecuted by the appellant and the appellant has been regularly appearing on all dates of hearing previously fixed in the matter. The trial court also failed to appreciate that the presence of authorized representative on 15th september, 2004 was not necessary and the case could have been adjourned to some other date by exercising its discretion. It is also submitted that no notice was sent to the appellant after transfer of the case from Sessions Judge to the court of Metropolitan Magistrate and hence due to lack of information, the appellant's counsel could not appear on 15th September, 2004 A sum of rs. 2,44,491/- was involved and there would be loss of the government money. ( 2 ) A perusal of the order sheets from 29th September, 2003 onwards, as reproduced in the petition would show that on 29th September, 2003, proxy counsel for the appellant appears in the Court. Since, no witness was present, the case was posted for 12th December, 2003. On 12th December, 2003 again, proxy counsel appeared for the appellant. The case was transferred from the Court of additional Sessions Judge to the Court of Chief Metropolitan Magistrate, in view of a Judgment of this Court and learned ASJ told parties to appear before the cmm on 19th December, 2003 at 10 am. On 19th December, 2003 the complainant did not appear the CMM transferred the case to the Court of Metropolitan Magistrate, for trial according to law asking the parties to appear before him on 20th january, 2004 at 2 PM. On 20th January, 2004 again, none appeared for the complainant. The learned MM of its own posted the case for 4th May, 2004 On 4th may, 2004, the Presiding Officer was on leave, so that case was posted for 15th september, 2004 On 15th September, 2004, the appellant was not present and the matter was awaited for appearance of complainant since morning. The learned MM dismissed the complaint at 2. 05 PM. The learned MM dismissed the complaint at 2. 05 PM. ( 3 ) THE appeal has been opposed by counsel for the respondents on the ground that the appellant has not come to the Court with clean hands. While record shows that he had not appeared even on previous hearings, the appellant stated that he has been appearing on all previous hearings. It is also submitted that the appellant was very much aware about the transfer of the case and it was obligatory on the part of the appellant to appear before the concerned court on the date fixed. ( 4 ) IT is evident that after transfer of the case from the court of ASJ to the Court of CMM and then to the Court of MM, the appellant did not appear despite knowing the date of appearance. However, on 4th May, 2004, the presiding Officer was on leave and the case was fixed by the Duty MM for 15th september, 2004 without recording as to for what purpose it was fixed. On 15th september, 2004, when complainant did not appear, the case was dismissed. ( 5 ) THIS Court in Indocom Micro Engs. 2002 (100) DLT 211 and in Krishan kumar Gupta 2002 (99) DLT 504 took the view that Magistrate is not bound to dismiss a complaint for non appearance under Section 256 Cr. P. C. and he can also adopt other course keeping in view circumstances of case. He has to exercise his discretion judicially. Considering that the case was not fixed for executing any material business on the day it was dismissed for non-appearance, the appeal should be allowed. However, keeping in view the past conduct of the appellant, I consider that the complaint should be restored only subject to costs. ( 6 ) I, therefore, allow this appeal subject to cost of Rs. 10,000/ -. The order of learned MM is set aside. The complaint be restored to its original number. The amount of cost be distributed equally among the respondents.