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2012 DIGILAW 1510 (PNJ)

Ashwani Kumar v. Mehar Flour & Saw Mills

2012-10-16

JITENDRA CHAUHAN

body2012
JUDGMENT Mr. Jitendra Chauhan, J.: (Oral) - This petition under Section 482 of the Code of Criminal Procedure has been filed for setting aside the order dated 6.6.2009 (Annexure P-2), passed by the learned trial Court, whereby the complaint filed by the petitioner was dismissed in default and the order dated 7.8.2010 (Annexure P-4), whereby the application for recalling the said order was dismissed and restoring the complaint on its original number for further trial. 2. Learned counsel for the petitioner contends that complaint of the petitioner was listed for hearing on 2.5.2009 and on the said date, the same was adjourned to 6.6.2009. However, inadvertently, the counsel as well as the complainant wrongly noted the date as 6.9.2009. On 6.6.2009, none caused appearance and therefore, the complaint was dismissed for non-prosecution. Subsequently, the application for restoration of the application was also dismissed. He further submits that absence is not intentional and also there is no delay in filing the restoration application. He further submits that if the complaint is not restored, then it will result in an irreparable loss to the petitioner. 3. On the other hand, the learned counsel for the respondents states that the present petition is not maintainable under Section 482 Cr.P.C. He cites Ravi Sharma vs. State (NCT of Delhi) and Anr. 2010 (5) RCR (Crl.) 179. 4. I have heard the learned counsel for the parties and perused the case file. 5. From the perusal of the record, it emerges that the absence is not intentional and the petitioner is not likely to gain anything out of absence. The reason for non-appearance is that the counsel as well as the complainant-petitioner wrongly noted the date. Thus, it is apparent that as the petitioner is not likely to be benefited from the order and if allowed to stand, it will result in snatching of the substantial right of the petitioner and he will not be able to realise the amount involved in the complaint. 6. In Om Parkash vs. M/s Golden Forest India Ltd. and others [2008(4) Law Herald (P&H) 2757] : 2008(4) RCR (Crl.) 445, (P&H) wherein the identical stand was taken i.e. the reason for non-appearance being bona fide, complaint restored to original number. 7. The law cited by the learned counsel for the respondent in Ravi Sharma’s case (supra) is not applicable on the facts of the present case. 8. 7. The law cited by the learned counsel for the respondent in Ravi Sharma’s case (supra) is not applicable on the facts of the present case. 8. In order to render substantial justice and keeping in view the fact that if the orders are allowed to stand, it will frustrate the right available to the petitioner and the view expressed in Om Parkash’s case (supra), the present petition is allowed. The impugned orders dated 6.6.2009 and 7.9.2010 are hereby set aside. The complaint is ordered to be restored to its original number. The parties shall appear before the learned trial Court on 01.12.2012 for further proceedings.