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Himachal Pradesh High Court · body

2013 DIGILAW 171 (HP)

PARTAP SINGH v. SURESH VERMA

2013-03-07

V.K.AHUJA

body2013
JUDGEMENT V.K.AHUJA, J. 1. THE present revision petition under Section 397 Cr.P.C. has been filed against the order, dated 16.10.2012, passed by the learned Judicial Magistrate Ist Class, Court No.III, Shimla, vide which he had dismissed the complaint filed by the complainant and the accused/respondent was acquitted. 2. NONE has put in appearance for the respondent, though on the last date, it was observed that power of attorney has been filed by the counsel for the respondent. I have heard the learned counsel for the petitioner and have gone through the record of the case. 3. A perusal of the record shows that the complaint was filed under Section 138 of the Negotiable Instruments Act by the complaint/petitioner as against the respondent. The complaint was being tried by the learned trial Court and on 16.10.2012, it was observed that the complainant was not present and had sought exemption from personal appearance for the date fixed. It was also observed that already five opportunities had been given to the complainant and still time had been sought to produce the witnesses. Therefore, the order was passed closing the evidence of the complainant and dismissing the complaint leading to the acquittal of the respondent. 4. I have gone through the order-sheets of the learned trial Court and a perusal of the same shows that the first date given for evidence of the complainant was 10.4.2012. Thereafter, the case was fixed for 7.6.2012 when the complainant moved an application for exemption, which was allowed and the case was adjourned to 23.7.2012, when similar application was filed and thereafter the date was given for 21.9.2012. Therefore, it is clear that the learned trial court had rightly observed that about five opportunities had been given for evidence of the complainant who was not present on the date fixed, filed an application for exemption and no witnesses were present. During the hearing, the learned counsel for the petitioner has made a statement at the bar that he wants to examine the complainant only and does not want to examine other witnesses and produce any other evidence. Therefore, the impugned order dated 16.10.2012 is set aside. The case shall be fixed, after notice to the respondent, for statement of the complainant, and the learned trial Court shall proceed with the case. As far as possible, only one opportunity shall be given for the examination of the complainant. Therefore, the impugned order dated 16.10.2012 is set aside. The case shall be fixed, after notice to the respondent, for statement of the complainant, and the learned trial Court shall proceed with the case. As far as possible, only one opportunity shall be given for the examination of the complainant. However, other date can be given, if justified in the facts and circumstances of the case. The complainant, through counsel, is directed to appear before the learned trial Court on 25.3.2013 and the learned trial Court shall proceed with the case, as mentioned above. The Registry is directed to send a copy of this order alongwith the records of the case forthwith, so as to reach the learned trial Court well before the date fixed. 5. THE petition stands disposed of accordingly, so also the pending application(s), if any. There is no order as to costs.