JUDGMENT : Vivek Singh Thakur, J. This petition has been preferred against the order dated 20.9.2017 passed by learned Judicial Magistrate 1st Class, Nahan, District Sirmour, H.P. in case No. 15/2 of 2016, titled as Azam Khan Vs. Hitender Walia and another, whereby private complaint filed by petitioner was dismissed in default for non prosecution for want of his representation either in person or through counsel, on the date fixed for recording pre-charge evidence of the complainant. 2. Present petition has been filed on 3rd July, 2019 after a period of 1 year and 10 months. It is claimed on behalf of petitioner that his private complaint was fixed before learned Judicial Magistrate on 8.8.2017 and on that date it was adjourned for recording pre-charge evidence of the complainant on 20.9.2017, however, learned counsel representing him had failed to communicate the said date to him, which caused his absence on that date i.e. 20.9.2017and further that neither his counsel had appeared on that date nor had informed dismissal of his complaint on that day, in default for non prosecution. It is further case of the petitioner that this fact came in his knowledge when he received the summon in a Civil Suit filed by respondent No. 2 Vijay Walia against him for damages on account of malicious prosecution for filing private complaint by the petitioner against him and lastly it is claim of the petitioner that absence before learned Judicial Magistrate was neither deliberate nor intentional, but for the aforesaid reasons and therefore, restoration of private complaint has been prayed for, after setting aside the impugned order. 3. Petition has been opposed by the respondents on the ground that even if claims put forth by the petitioner in the petition are admitted to be true, even then there is unexplained inordinate delay in filing the present petition, as copy of impugned order was received by the petitioner on 3.11.2018 and thus at that time, he had gained knowledge about dismissal of his complaint in default for non prosecution and also that claim of the petitioner that on service of summons, he had gathered the knowledge about dismissal of complaint is false, which is evident from the copy of summon placed on record by petitioner himself along with rejoinder, wherein it is clearly mentioned that petitioner Azam Khan had refused to receive the summons on 25.9.2018. It is also canvassed on behalf of respondents that knowledge of dismissal of complaint can also be gathered from the written statement filed by petitioner in the suit preferred by respondent No.2. The said written statement was filed on 4.1.2019 (wrongly mentioned as 4.1.2018), copy whereof has been placed on record along with reply. Further that in this written statement also, instead of taking plea, now taken in the petition, petitioner had contended that complaint was not decided on merits and therefore, suit for malicious prosecution was not maintainable. 4. Perusal of copy of impugned order placed on record reveals that the same was applied on 1.10.2018 and it was prepared, examined and attested on 3.11.2019 and thereafter it was delivered to the petitioner. Since November, 2018 till 3rd July, 2019, there is no justifiable or plausible explanation for not assailing the impugned order. Dismissal of complaint could have been assailed by filing Revision Petition within 90 days of passing of impugned order, after deducting the time taken for receiving the copy. The impugned order was passed in September, 2017. Even if, it is considered that the said order came in the knowledge of petitioner in September/October, 2018, then also, it should have been assailed within reasonable period, i.e. 90 days, as provided for filing Revision Petition. 5. It is another issue that when Revision Petition is maintainable, a petition under section 482 Cr.P.C., could not have been entertained. However, without going into the said issue, on other grounds also, I find that relief prayed in the present petition is not maintainable. 6. From the order sheets of the complaint, placed on record, it is evident that the said complaint was being fixed for further proceedings by the trial Court after a interval of 1-2 months and every time complainant was duly represented by an Advocate. He had also examined witness at the time of leading preliminary evidence, whereafter, respondents were summoned. Therefore, it is unbelievable that complainant keep waiting information from the Advocate after 8.8.2017 till October, 2018, when he applied for certified copy of impugned order. The reason, that counsel representing him had not informed the next date of hearing and about taking the steps for leading pre-charge evidence, is unbelievable in this background. 7. On 8.8.2017 also case was listed for pre-charge evidence. The reason, that counsel representing him had not informed the next date of hearing and about taking the steps for leading pre-charge evidence, is unbelievable in this background. 7. On 8.8.2017 also case was listed for pre-charge evidence. It was not for the first time that case was listed for pre-charge evidence on 20.9.2017. On 8.8.2017 also, one Mr. Sunil Chauhan, Advocate had appeared for the complainant and had sought time to produce the evidence on the ground that he was engaged by the complainant on that date itself and therefore, final opportunity was granted to the complainant. It is again unbelievable that the complainant, who had engaged a counsel afresh on 8.8.2017, did not approach the said counsel for knowing the fate of his complaint, particularly when it was fixed for pre-charge evidence to be lead by complainant himself and wherein time was to be sought to lead the evidence on his behalf. 8. Leaving aside the aforesaid facts, even if, it is considered that the impugned order came in knowledge of complainant in October, 2018 and he received copy in November, 2018, there is again no explanation since November, 2018 till filing of the petition in July, 2019. 9. It appears that earlier complainant was not interested to pursue the complaint and he had accepted the dismissal of the complaint in default for non prosecution and that is why even at the time of filing written statement, instead of filing a petition for restoration of complaint, a stand was taken that the dismissal of complaint was not on merits and did not infer that there was malicious prosecution of respondents by complainant. 10. In the aforesaid facts and circumstance, I find no merit in the petition and accordingly the same is dismissed. 11. 10. In the aforesaid facts and circumstance, I find no merit in the petition and accordingly the same is dismissed. 11. Before parting, it would be in the interest of justice to observe that dismissal of present petition, ipso facto, does not mean that the complaint filed by him was a false complaint and automatically respondent No. 2 is entitled for damages on account of his malicious prosecution of the said complaint, rather suit preferred for damages on account of malicious prosecution is an independent proceedings, in which respondent No.2 (plaintiff therein) has to establish his claim on its own merits and petitioner (defendant therein) has to establish his defence in accordance with law on its own merits and on the basis of pleadings of the parties and evidence lead by parties after framing of issues, the trial Court has to decide the same on its own merits in accordance with law and facts on record. Ingredients for damages on account of malicious prosecution and of defence thereto are to be pleaded and proved by the parties during adjudication of the suit, independent of dismissal of present petition and observation made in this petition shall be construed to have been made for the purpose of decision of present petition. 12. The petition stands disposed of in the aforesaid terms, so also the pending applications, if any.