Joginder Kumar and Others vs Jawahar Lal

V.K. Shali, J.

Crl.M.A.2787/2012

Allowed, subject to the deficiency being rectified.

Crl.L.P.127/2012 & Crl.M.A,.2786/2012

This is a leave to appeal filed by the petitioners u/s 378 Cr.P.C. against the order dated 21.10.2011 passed by the learned Metropolitan

Magistrate, Saket Courts, New Delhi, dismissing the complaint titled Joginder Kumar & Other -vs- SHO, P.S. Lajpat Nagar & Other.

Briefly stated, the facts of the case are that a complaint under Sections 406/ 420/ 423/ 506 IPC was filed by the petitioners against the

respondent/accused persons. It has been alleged that the complainants, in the first week of May, 2005, were approached by the respondent no.2,

who is a property dealer, who offered to sell his property bearing No.D-1/9, Lajpat Nagar, New Delhi measuring 100 yards. The accused no.2,

Roshan Lal Gulati approached the petitioners for negotiations on 18.5.2005 and the deal was struck for a sum of Rs. 22,50,000/-. It is submitted

that the petitioners were cheated by the SHO, PS:Lajpat Nagar, New Delhi. The Court heard the arguments and passed an order of summoning.

The petitioners were adducing pre-charge evidence against the accused persons. They have filed on record the orders passed from 8.4.2009 till

21.10.2011. The order dated 8.4.2009 shows that the cross-examination of CW3 was deferred and the matter was adjourned to 3.7.2009. The

petitioners have stated that on 21.10.2011, they could not appear, because of which the complaint was dismissed, as he was down with some

ailment.

The Court directed the petitioners to file the previous order sheets. A perusal of the order sheets show a pathetic state of affairs inasmuch as the

petitioners, after filing of the complaint, had not been very vigilant in pursuing their complaint. They have not been appearing in Court, although the

accused persons were invariably attending it. This is evident from the fact that on 3.2.2010, 23.7.2010, 30.11.2010, 4.2.2011, 21.2.2011,

1.6.2011 and 27.9.2011 there was no appearance on behalf of the petitioners, either in person or through their counsel, although the accused

persons were duly represented by their counsel. On 27.9.2011, the matter was adjourned to 21.10.2011. On 21.10.2011, as nobody had

appeared, the Court, after waiting till 2:00 P.M., dismissed the complaint in default as well as for want of prosecution.

Feeling aggrieved by the order dated 21.10.2011, the present petition has been filed, seeking leave to appeal, accompanied by an application

seeking condonation of 60 days delay in filing the same.

I have heard the learned counsel for the petitioner.

The fact that the petitioners were constantly not appearing for almost two years clearly shows that it is not a case where, by any stretch of

imagination, it can be said that the petitioners were prevented by ''sufficient cause'' from appearing on 21.10.2011 or that there was justification for

them being absent on that date. It has been noticed that one of the major reasons for delay in the disposal of criminal cases is only on account of

the non-appearance of the complainants and the undue indulgence shown by the Courts in adjourning the matter repeatedly, as has been done in

the instant case. In the instant case, the learned Magistrate has gone out of the way and shown undue sympathy and indulgence to the

complainants, i.e., the petitioners, by not taking a precipitative action of dismissing the complaint.

I feel since the petitioners were continuously absent for almost two years and the accused persons were duly represented through their counsel,

the only purpose of filing the complaint is to harass the accused persons.

For the aforementioned reasons, I feel that it will be setting a very bad precedent to grant leave to appeal in cases like this where the petitioners

have been grossly negligent in pursuing their complaint. I, accordingly, feel that there is no justification for condoning the delay of 60 days in filing

the leave to appeal or even if it is condoned on merits also, the impugned order does not deserve to be set aside. The petition, on the contrary, is

without merit and the same is dismissed.