ASHWINI KUMAR SHARMA Vs. HEMRAJ SHARMA

JUDGEMENT

(1.) The present petition by Complainant Ashwini Kumar Sharma to this Court under section 482 Cr. P.C. arises in the following facts and circumstances; on 7.1.1978, the complainant filed a complaint for offence under sections 417 and 500 Indian Penal Code against non-applicant Hemraj Sharma in the Court of Judicial Magistrate, Briefly speaking, the complaint was based on the following allegations; The complainant had been a resident of Raigarh. The non-applicant had been a resident of Cuttack. On 21.7.1977, when the complainant was in Cuttack, the non-applicant put a proposal to him for the marriage of his daughter with the complainants son. The proposal was accepted by the complainant. It was promised by the non-applicant that he would come to Raigarh on 1.9.1977 and perform the ceremony of Tilak at the residence of the complainant. In between 21.7.1977 and 1.9.1977 the non-applicant confirmed his above said promise in his letters and talks on telephone. Acting on the representation of the non-applicant, the complainant made elaborate arrangements for the ceremony of Tilak at his residence and invited a lot of his relations, friends and well wishers to attend the same. But, then, on crucial day, the non applicant did not reach Raigarh as promised nor did he offer any explanation, thereafter for his conduct. His said conduct was a deliberate one and was intended to insult the complainant, causes harm to his reputation and put him to financial loss. For his said conduct, the non-applicant was liable to be convicted and sentenced for offences under sections 417 and 500 Indian Penal Code.

(2.) After examining upon oath the complainant, the Magistrate, being of the opinion that there was sufficient ground for proceeding against the non-applicant for offence under section 500 I.P.C., ordered issue of process for the attendance of the non-applicant. On 3.5.1978, when the non- applicant appeared in the Court, the Judicial Magistrate explained the particulars of the offence to him. The non-applicant pleaded not guilty to the offence. Thereafter, the Judicial Magistrate directed the complainant to produce his evidence. For one reason or the other, the recording of evidence of complaints witnesses could be completed only by October, 1981. Thereafter, the non- applicant was heard and examined on 20.10.1961. The recording of evidence of the defence could be completed only by Perjury, 1983. The case was, thereafter, fixed for arguments. At this stage, an application was made on behalf of the complainant, purporting to be one under section 216 Cr. P.C., for adding the charge under section 417 Indian Penal Code also against the non-applicant. The Judicial Magistrate rejected the said application vide his order dated 3.3.1983. Being aggrieved by the order the complainant preferred a revision in the Court of Session. The Court of Session dismissed the said revision vide its order dated 1.2.1984. It is seen that the complainant has now moved this Court under section 482 Cr.P.C.

(3.) In the opinion of this Court, the Courts below failed to appreciate the point in controversy in its true and proper perspective. As already stated above, the complaint made by the complainant against the non-applicant was not only for an offence under section 500 Indian Penal Code but also for that under section 417 Indian Penal Code. Again, though the issue of process to the non- applicant was for an offence under section 500 Indian Penal Code, and the particulars of the offence explained to him on 3.5.1978 were stated to constitute an offence under that section, the said particulars prima facie constituted an offence only under section 417 Indian Penal Code and not that under Section 500 Indian Penal Code.