G S BHAITA Vs. RAJESH GUPTA

JUDGEMENT

(1.) This appeal has been preferred against the order dated 6th November, 2006 passed by the learned MM whereby the complaint of the complainant was dismissed in default for non-prosecution due to non-appearance of the complainant. It is submitted by the complainant that neither petitioner nor his counsel appeared on 6th November, 2006 as the date noted in the diary of the Counsel was 16.11.2006 and non-appearance on 6.1..2006 was unintentional and not deliberate.

(2.) The appeal is opposed by the respondent and it is stated that the accused has placed on record only a photocopy of the diary and original diary has not been brought to the court to show that the photocopies were the true copies of the diary. He also stated that it was very easy to manipulate the date of 6.11.2006 as 16.11.2006 in the diary. It is submitted that the ground taken was a false ground.

(3.) A perusal of record shows that complaint was filed on 21.12.2004 After filing of the complaint, cognizance was taken on the basis of pre-summing evidence on the same day and notice was sent to the accused/respondent and the case was fixed for complainant's evidence on 29.4.2006. On 29.4.2006 none appeared for the complainant and court notice was sent to the complainant for 6.11.2006. On 6.11.2006, the matter was dismissed for non appearance of the complainant. The plea taken by the complainant's counsel is that he noted the wrong date in the diary on previous date of hearing while on previous hearing none had appeared for the complainant. The question of noting a wrong date, therefore, does not arise.