VEERABAGU Vs. DEVARAJMINOR

JUDGEMENT

(1.) This Revisions is against the order of the learned Judicial Magistrate No. V, Coimbatore, in Crl. M.P. No. 2721 of 1992 rejecting the petition of the revision petitioner to discharge him exonerating the charge under Section 338, Indian Penal Code.

(2.) The petitioner is a Dentist working in ESI Hospital at Coimbatore. The respondent herein, who is a minor boy, had swelling on the left side of his cheek on account of the decaying of a tooth and as his father was entitled to the treatment in the ESI Hospital, the minor boy as a dependent son, approached the revision petitioner for treatment. The allegation is that the revision petitioners, instated of extracting the decayed tooth on the left side cheek, extracted the healthy tooth on the right side, causing great inconvenience to the minor boy. He filed complaint before the police for necessary action against the petitioner herein but as his complaint to the police was not effective he filed the private complaint before the learned Judicial Magistrate against the revision petitioner for the offence under Section 338, Indian Penal Code. In the meanswhile, the minor boy filed a civil suit against the revision petitioner herein and another Doctor by name Dr. Shakia Farid and ESI Corporation before the III Additional Sub Judge, Coimbatore in OS No. 92 of 1986 and that suit, after trial, was dismissed in toto. On appeal before the leaned I Additional District Judge, the learned Judge found that the second defendant in the suit was responsible for this negligent act in extracting the tooth and therefore decreed the suit against the second defendant Shakia Farid and confirmed the dismissal of the suite against the defendants 1 and 3. As a civil Court has found that the revision petitioner herein was not responsible for the extraction of the healthy tooth, the revision petitioner filed the petition before the learned Judicial Magistrate, Coimbatore, to exonerate him of the charge as he has not committed the offence and discharge him. But the learned Judicial Magistrate, Coimbatore, did not accept the contention of the petitioner and dismissed the petition. Hence, this revision.

(3.) The treatment of the minor boy in ESI Hospital, Coimbatore, and the extraction of his tooth are not disputed. The only contention raised by the petitioner is that as he has been exonerated by civil Court, holding that he was not responsible for extracting the healthy tooth, but his assistant Shakia Farid was responsible, he cannot be prosecuted before the learned Judicial Magistrate and therefore he has to be discharged.