GANDABHAI JETHABHAI PATEL Vs. SURESHKUMAR MAFATLAL SHAH

JUDGEMENT

(1.) AFTER the appeal being admitted, learned counsel Mr. Tindwani has appeared for the original accused and pointed out that, by impugned order dated 19. 01. 2007, complaint of the appellant was rightly dismissed for non-prosecution, in view of the fact that neither the appellant nor his advocate was present, nor was an application for adjournment made.

(2.) RELYING upon the averments made in the appeal, it was argued by learned counsel Mr. G. K. Patel that the complaint involved serious offence of not handing over the essential documents to the complainant, who was the public servant, whereby loans of Rs. 15 lacs could not be recovered and the actual loss due to recurring interest was running into more than Rs. 43 lacs. He submitted that, on 19. 01. 2007, the complainant could not remain present because he was misled by his advocate into believing that the date of hearing was 22. 01. 2007. Even, thereafter, learned advocate for the appellant did not enquire and did not find out that the complaint was dismissed after pendency of three years and, as late as in November, 2007, it was learnt that the complaint was dismissed for non-prosecution. Thereafter, an application for condoning delay of 455 days was made and that application was allowed by this Court. He submitted that since public money was involved, the opponent should not be allowed to go scot-free merely because of lack of communication or mis-communication between the appellant and his advocate. Learned A. P. P. , who was supporting the appeal, submitted that in view of the public element and interest involved, the appeal was required to be allowed in the interest of justice.

(3.) IN the above facts and circumstances, it clearly appears that the appellant has not taken proper care to prosecute the complaint and it is a case of gross negligence either by the advocate of the appellant or the appellant himself or both. Therefore, it is by collusion, acquiescence or sheer negligence that the complaint appears to have been dismissed and delayed appeal is filed to detract any charge against the complainant himself. Under the circumstance, the appeal is allowed, impugned order is set aside and original criminal case is restored to the file of learned Chief Judicial Magistrate, Mehsana with direction to proceed further from the earlier stage with necessary dispatch in accordance with the provisions of Section 309 of the Code of Criminal Procedure. In the peculiar facts and circumstance of the case, the appellant is directed to personally pay, by way of cost, Rs. 2500/- to the District Registrar, Co-operative Societies, Mehsana within one month.