YASHPAL Vs. STATE & ORS.

JUDGEMENT

(1.) BY virtue of this writ petition under Article 226 and 227 of the Constitution of India read with Section 482 of the Code of Cr. P.C., 1973, the petitioner seeks to get the order dated 04.05.2013 passed by learned Session Judge in Crl. Rev. No. 51/2012 and order dated 18.07.2012 passed by learned trial Court in CC No. 08/2012 set aside and for restoration of the criminal revision and complaint to its original number. The back ground of the case is that the petitioner filed a criminal complaint u/s. 200 read with Section 156(3) of Cr. P.C. before the learned Metropolitan Magistrate with the prayer to issue directions to register the FIR u/s. 420/468/471/120 -B/34 IPC against the accused persons on the ground that the petitioner is doing business and entered into an agreement to sell with one Shri Irtiza Hussain and his son Mohd. Yusuf vide agreement to sell dated 27.06.2011 in respect of property bearing No. Phoenix Lodge, having its covered area measuring 7500 sq. ft approximately along with open area with tennis court measuring 13000 sq. ft approximately situated at Vanistart Estate now known as Hakmans Estate, Mall Road, Mussoorie against the full and final consideration amount of Rs. 12,40,00,000/ -. A sum of Rs. 1,24,00,000/ - have already been paid to the seller. An agreement to sell was executed after being satisfied with the representation of respondent but the revisionist came to know that the property was under litigation with a person, namely Afak Mohd and his mother namely Smt. Wasim Jahan, resident of Lucknow who were claiming to be the real owners of the property and even a status quo order was passed on 24.07.2002 by High Court of Allahabad at Lucknow Bench. Number of litigations are pending in Dehradun District Court as well as District Court, Lucknow.

(2.) AS per the status quo order, the property legally cannot be sold without prior permission of the Court. The accused persons refused to return the money of the petitioner and even avoided meeting with him. The petitioner lodged a complaint with SHO concerned as well as senior police officials but no action was taken on his complaints. Thereupon the petitioner filed a criminal complaint before the learned M.M for taking action against the accused persons as per law. In March, 2012, compromise talks were initiated between the revisionist and respondent No. 3. Moreover the petitioner had also changed his counsel. When the compromise talks were coming to some result, the revisionist instructed his new counsel to withdraw the complaint and as such the submission was made by the new counsel before the Court on 19.03.2012 but the counsel was directed to call the petitioner in person. For two dates of hearing, the petitioner appeared in person but since the learned trial court was on leave, the matter was adjourned for further proceedings. Inadvertently, the petitioner noted the date of hearing as 13.08.2012 and did not appear on 18.07.2012 which resulted in dismissal of the complaint in default for non -prosecution. Immediately an application for restoration of the complaint was filed. Realising that the restoration application is not maintainable, same was withdrawn, with liberty to file appropriate application. Thereupon revision was filed before the learned Sessions Court on 18.09.2012. The learned Session Judge admitted the revision petition and called for the Trial Court record. The matter was being adjourned from time to time but again due to wrong noting of the date, the counsel did not appear, as such the revision petition was dismissed in default.

(3.) LEARNED counsel for the petitioner relied upon Madanlal Kapoor Vs. Rajiv Thapar & Ors., : 2007 Crl. L.J. 4684 for submitting that a revision petition cannot be dismissed in default and the same has to be decided on merits. It was further submitted that since a huge amount is involved, as such in case the impugned order is not set aside then the petitioner be granted liberty to file fresh complaint.