Pawan Mehta vs Sunil Malik & Anr

MUKTA GUPTA, J

Crl. M.A. No.17301/2016 (Delay)Â

For the reasons stated in the application, delay of 142 days in filing the leave to appeal petition is condoned.

Application is disposed of.Â

CRL.L.P. 593/2016

Having heard the learned counsel for the parties and going through the Trial Court record, leave to appeal is granted.Â

Petition is disposed of. Crl. A. No. /2018 (to be numbered)

Admit.

Registry to number the appeal.Â

Aggrieved by the order dated 20th February, 2016 whereby the opportunity to lead the pre charge evidence was closed and vide order dated 26th

April, 2016 the complaint was dismissed for non-prosecution, the appellant has filed the present leave petition to restore the complaint case to its

original stage and allow the appellant to lead pre charge evidence.Â

The appellant had filed a complaint under Section 190 Cr.P.C. before the learned Additional Chief Metropolitan Magistrate for taking cognizance of

the offences punishable under Sections 406/468/471/120B/193 IPC. However, the respondent No.1 was summoned to face trial for offence

punishable under Section 406 IPC. Respondent No.1 appeared before the learned Court and was admitted for bail. Thereafter the matter was listed

for pre charge evidence. When the matter was listed for pre charge evidence, the appellant and his counsel failed to appear before the learned

Metropolitan Magistrate on 30th June, 2015, 24th August, 2015, 30th October, 2015, 19th December, 2015 and 20th February, 2016. Consequently, the

opportunity was closed vide impugned order dated 20th February, 2016. Since, the appellant did not appear on 26th April, 2016 the complaint was

dismissed in default for non-prosecution.Â

Appellant filed a revision petition against the order dated 26th April, 2016 which was also dismissed by the learned Additional Sessions Judge vide

order dated 9th August, 2016 as being not maintainable.

Case of the appellant is that since the learned Trial Court summoned respondent No.1 for offences punishable under section 406 IPC and did not

summon the remaining accused, vide order dated 21st August, 2013 the appellant filed a Revision Petition No.4/2014 assailing the order of summoning

wherein the learned Additional Sessions Judge directed summoning of all the accused vide order dated 24th May, 2014. Shweta Malik, one of the

accused, challenged the order dated 24th May, 2014 before this Court in Crl.Misc.(Main) No.3970/2014 wherein with the consent of the parties, on

12th December, 2014, this Court remanded the matter back. Thus, fresh arguments were advanced before the learned Additional Sessions Judge

and orders reserved in June, 2015. Pursuing the remedy in revision and before this Court and due to summer vacations, the appellant lost track of

the proceedings before the learned Trial Court. It is the case of the appellant that since father of the counsel was hospitalized for 2½ months and

the appellant was under a bonafide belief that the proceedings in the complaint case were stayed till passing of an order in the Revision petition and

the proceedings before the learned Trial Court were being handled by a different counsel who suffered a massive cardiac arrest, none appeared

before the learned Metropolitan Magistrate on the dates as noted above resulting in the closing of the opportunity to lead pre-charge evidence and

dismissal of the complaint for non-prosecution. Medical documents relating to the ailments of the father of the learned counsel have also been

placed on record.Â

Since the explanation rendered by the appellant is fortified by the documents and probable, the complaint is restored to its original position, subject to

cost of ₹25,000/- to be paid by the appellant to the respondent.

Renotify on 28th August, 2018 before the learned Metropolitan Magistrate.Â

Appeal is disposed of.Â

Trial Court Record be sent back forthwith.