KANHU CHARAN LENKA Vs. UDAYANATH NAYAK

JUDGEMENT

(1.) In this writ revision, the petitioner challenges the order dated 27.10.2008 passed by the learned S.D.J.M. (Sadar), Cuttack in 2 (C) CC No. 129 of 2008 taking cognizance under Sections 177, 181 and 182, IPC against him without applying its judicial mind and without explaining reasonable/sufficient cause to condone the delay in filing the complaint petition.

(2.) The facts leading to the present case are as follows:

(3.) Learned counsel appearing for the petitioner submitted that from the above fact it is crystal clear that inquiry was made on the allegation of one Harihar Parida. However, the complaint petition does not reveal as to when such an application was filed by Harihar Parida and when inquiry was made and the complaint petition was filed four years after the election. The complainant also though repeatedly stated in the complaint petition that the petitioner did not disclose the property owned by him and his spouse, but in the complaint petition the facts narrated reveals that the allegation was with regard to the property belonging to the joint living family members. So, it is not possible on the part of the petitioner to ascertain the property belonging to the joint living family members. As such, the petitioner has not suppressed any facts while furnishing such affidavit, rather he has furnished the property belonging to him and his spouse even though the records were not corrected and his name was not reflected in the record of right. Learned counsel for the petitioner further submits that the Sub-Collector had received all the reports by 17.11.2007. As it appears from the complaint petition the alleged offence is under Section 125 A of the Representation of the People Act, 1950 (hereinafter referred to as "the Act"). Since the said provision is a special provision, the punishment prescribed under the aforesaid section is imprisonment for 6 months or with fine or with both. However, after receiving those reports he did not submit all those facts to the District Magistrate to fIle a complaint petition. As the complainant did not properly explain the delay caused in filing the complaint petition, the Court below should not have condoned the delay and in view of the fact that the alleged facts were within the knowledge of the complainant long since 15.9.2006, the complaint petition is liable to be dismissed in limine. In support of his contention, learned counsel for the petitioner cited a unreported decision of this Court in Criminal Misc. Case No. 57 of 2007, Narasingha Mishra v. Sub-Collector-cum-Returning Officer, 110 Loisingha Assembly Constituency, Botangir as well as decision of the Apex Court in General Manager, Telecom v. M. Krishnan and another, 2009 10 SCC 184 and another decision in S.K. Bajaj and others v. D. K. Bhattacharya and others., 1982 CrLJ 210.