MOHMAD FARUQ GULAM MOHMADKHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under Articles 226 and 227 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure, 1973 the petitioner has prayed for the following reliefs :

(2.) TO state the facts precisely arising out of this petition, the petitioner is original complainant who lodged complaint against respondent no.2 herein for alleged offences under sections 406 and 420 of Indian Penal Code which came to be registered as Criminal Case No. 721 of 2003 in the Court of Metropolitan Magistrate, Ahmedabad. The facts reveal that the petitioner­original complainant was formerly staying in Ahmedabad and now he stays at Ratlam and rojkam which is part of this petition also indicates that the complaint is being heard on different dates from the date of its filing i.e. 4.4.2003 till the impugned order dated 30.11.2010 was passed by the Metropolitan Magistrate. The Metropolitan Magistrate on account of the fact that the petitioner-original complainant did not remain present, dismissed the complaint for default. Rojkam indicates that the said order was passed on 30.11.2010 and the said complaint was placed for hearing earlier on 18.11.2010.

(3.) MR . Hakim, learned Counsel appearing for the petitioner-original complainant has submitted that only on one occasion the petitioner-original complainant could not remain present as could be seen from rojkam and the learned Metropolitan Magistrate dismissed the said complaint. Mr. Hakim, learned Counsel has relied upon the judgment of the Hon'ble Apex Court in the case of Mohd. Azeem Vs. A. Venkatesh And Another, reported in (2002) 7 SCC 726 and recent judgment of the Hon'ble Supreme Court in the case of Punjab State Warehousing Corporation Vs. M/s. Sh. Durga Ji Traders & Ors., reported in AIR 2012 SC 700 and has contended that considering the facts arising in this petition as well as considering the rojkam, only because the original complainant was not present on 30.11.2010 the impugned order dismissing the complaint came to be passed by the learned Metropolitan Magistrate. Mr. Hakim submitted that even the order passed by the learned Sessions Judge is erroneous on face of it and the learned Sessions Judge has not considered the fact that he has wrongly considered the facts on record and has wrongly dismissed the revision.