Ajay Singh vs Pradip Singh and Another

Brij Kishore Dubey, J.—Heard on the question of admission. This petition u/s 482 of Cr.P.C. is preferred by the petitioner herein/complainant for quashing the order dated 23.1.2013 passed by Judicial Magistrate First Class, Vidisha in Complaint Case No. 2684/2010, whereby the complaint of the petitioner has been dismissed u/s 249 of Cr.P.C. in default of his non-appearance.

Short facts of the case are that, the petitioner/complainant filed a private complaint against the respondents/accused for the offence punishable under Sections 406, 420 and 417 of IPC. The evidence produced by the complainant in support of the complaint was considered and the cognizance under Sections 420 and 406 of IPC has been taken against the accused persons. After appearance of the respondents, the case was fixed for evidence before the Trial Court and repeated opportunities were granted to the complainant for producing the evidence before framing charge, however, on 7.1.2013 neither the evidence was produced by the complainant nor he himself was present before the Court, therefore, the complaint was dismissed in his absence and the accused had been discharged from the offence vide the impugned order dated 23.1.2013.

Learned counsel for the petitioner submits that the junior counsel of the complainant whose name was Bhagmal Shakya inadvertently signed the order sheet of the analogus case bearing Criminal Case No. 64/2008 (Pradip Singh Vs. Ajay Singh) of the same subject-matter filed by the respondents against the petitioner herein u/s 138 of the Negotiable Instruments Act pending before the same Court on 7.2.2013, therefore, neither the complainant was informed of the date fixed on 23.1.2013 nor counsel for the complainant appeared on 23.1.2013, therefore, the case was dismissed in default of appearance. It is further submitted that though many opportunities have been given to the complainant for producing the evidence, but the same could not be a ground for dismissing the complaint in default in appearance. Learned counsel has placed reliance on the judgment in Mohd. Azeem Vs. A. Venkatesh and Another, . On these grounds learned counsel prays for setting aside the impugned order dated 23.1.2013 and to restore the criminal case.

Learned counsel for the respondents vehemently opposed and submitted that 18 opportunities were given to the complainant for producing the evidence, but he failed to do so, therefore, the learned Trial Court has rightly dismissed the case.

In the case of Mohd. Azeem (supra) the complaint was dismissed in default of appearance on the part of the complainant, wherein the Apex Court observed as under:

(3) From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his appearance (sic absence) on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complaint.

(4) In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant.

It is true that many opportunities have been given to the complainant to produce his evidence before the Trial Court but he failed to do so, but in view of dictum laid down by the Apex Court in the aforesaid case and facts of the case and in the interest of justice, in my considered view the petition deserves to be allowed and one opportunity should be granted to the petitioner.

Consequently, order dated 23.1.2013 passed by Judicial Magistrate First Class, Vidisha in Complaint Case No. 462/2010 is set aside subject to payment of Rs. 1500/- (Rupees Fifteen Hundred only) to the respondents. The Trial Court is directed to grant one last opportunity to the petitioner to lead the evidence and thereafter proceed further in the matter in accordance with law. The petitioner is directed to produce certified copy of this order before the Trial Court for necessary compliance. Accordingly, the petition stands disposed of.