DIRECTOR DELHI LOTTERIES Vs. G D BANSAL

JUDGEMENT

(1.) This appeal has been preferred against the order dated 15th September, 2004 passed by learned Metropolitan Magistrate whereby the complaint of the appellant was dismissed and the accused persons were acquitted of the charges. It is submitted by the appellant that the Penal Lawyer failed to appear on behalf of the appellant without intimating the appellant. The case was being hotly prosecuted by the appellant and the appellant has been regularly appearing on all dates of hearing previously fixed in the matter. The trial court also failed to appreciate that the presence of authorized representative on 15th September, 2004 was not necessary and the case could have been adjourned to some other date by exercising its discretion. It is also submitted that no notice was sent to the appellant after transfer of the case from Sessions Judge to the Court of Metropolitan Magistrate and hence due to lack of information, the appellant's counsel could not appear on 15th September, 2004 A sum of Rs.2,44,491/- was involved and there would be loss of the government money.

(2.) A perusal of the order sheets from 29th September, 2003 onwards, as reproduced in the petition would show that on 29th September, 2003, proxy counsel for the appellant appears in the Court. Since, no witness was present, the case was posted for 12th December, 2003. On 12th December, 2003 again, proxy counsel appeared for the appellant. The case was transferred from the Court of Additional Sessions Judge to the Court of Chief Metropolitan Magistrate, in view of a Judgment of this Court and learned ASJ told parties to appear before the CMM on 19th December, 2003 at 10 am. On 19th December, 2003 the complainant did not appear the CMM transferred the case to the Court of Metropolitan Magistrate, for trial according to law asking the parties to appear before him on 20th January, 2004 at 2 PM. On 20th January, 2004 again, none appeared for the complainant. The learned MM of its own posted the case for 4th May, 2004 On 4th May, 2004, the Presiding Officer was on leave, so that case was posted for 15th September, 2004 On 15th September, 2004, the appellant was not present and the matter was awaited for appearance of complainant since morning. The learned MM dismissed the complaint at 2.05 PM.

(3.) The appeal has been opposed by counsel for the respondents on the ground that the appellant has not come to the Court with clean hands. While record shows that he had not appeared even on previous hearings, the appellant stated that he has been appearing on all previous hearings. It is also submitted that the appellant was very much aware about the transfer of the case and it was obligatory on the part of the appellant to appear before the concerned court on the date fixed.