GANESH SHARMA Vs. SUDHIR CHOUDHARY

JUDGEMENT

(1.) Petitioner has filed the instant petition under Section 561-A of the Code of Criminal Procedure seeking quashment and setting aside of order dated 30.01.2013 passed by the Sub-Judge, JMIC, Jammu in criminal Complaint 'titled Ganesh Sharma v. Sudhir Choudhary ' under Section 418 RPC with further prayer for directing the trial court to proceed with the trial of the complaint and decide it in accordance with law.

(2.) The brief facts of the case are that petitioner was allured by the respondent to enter into an agreement with him for sale of CP Bath Fittings. Pursuant to this agreement, the respondent was obliged to supply items to the petitioner against payment. The nature of goods to be supplied is such that each item comes in 4 to 5 parts like tap, shower etc. It is submitted that the respondent did not supply the complete set to the petitioner and his intention had remained deceitful right from the very beginning of the transaction. It is stated that the petitioner was made to suffer loss of Rs. 10 lac. A huge consignment of incomplete items is lying with the petitioner and the respondent is deliberately not supplying the remaining/deficient items. This compels the petitioner to file a complaint before the Court of Sub-Judge, JMIC, Jammu in which process was issued against the respondent after recording of the preliminary statement. Respondent challenged the issuance of process and the complaint in petition under Section 561-A of the Code of Criminal Procedure before this Court. The same was dismissed vide Judgment dated 07.11.2012. Perusal of the judgment would show that this court had not fixed any date for appearance before the trial court. It is submitted that petitioner kept enquiring from the trial court about further proceedings in the matter. The trial court appears to have recorded 3 absents of the petitioner on 30.11.2012, 05.01.2012& 24.01.2013 and proceeded to dismiss the complaint on 30.01.2013. It is stated that the petitioner was not aware of the judgment of the Hon'ble High Court. The petitioner was never issued any notice. It is stated that even the counsel for the petitioner/complainant had been diligently enquiring from the trial court about the case. The petitioner finally came to know that in the second week of March, 2015 the complaint stands dismissed. It is further stated that certified copy of the same was applied on 17.03.2015 and was obtained on 25.03.2015. It is stated in the absence of the complainant could not have even otherwise resulted in dismissal of the complaint, the process having been issued once and even the respondent absented himself. It is stated that the absence of the complainant/petitioner was not because of any of his faults but because of the factors narrated above. It is stated that the complaint in question involves serious offences and therefore is required to be tried and taken to its logical conclusion. Even otherwise, dismissal of complaint under section 418 RPC simply because of the absence of the complainant was not warranted under law.

(3.) Per contra, learned counsel for the respondent has filed the objections to the instant petition and stated that the present petition is liable to be dismissed on the ground that the trial court has passed legal order as the petitioner remained absent continuously on three consecutive appearance, i.e., on 30.11.2012, 05.01.2012& 24.01.2013. It is further stated that the present petition is liable to be dismissed on this ground that on the assistance of counsel for the petitioner, Hon'ble court dismissed 561-A Cr.P.C No. 207/2010 filed by the respondent, therefore, the petitioner is debarred from taking the plea after three years that since Hon'ble Court had fixed any date for appearance before the trial Court, therefore, the petitioner could appear before the trial court. It is stated that the present petition is liable to be dismissed on this ground that it is settled law that litigant who has filed the case should remain vigilant of his case& court has to issue notice for his appearance. It is further stated that the petitioner was never allured by the respondent. The agreement dated 10.06.2004 on which the petitioner is relying was never executed and signed by any authorized Manager of the Company. Against the said agreement, FIR was lodged in Police Station, Mathura under sections 420/467/468/471/504/506 IPC and challan was presented before the learned Chief Judicial Magistrate, Mathura and non-bailable warrants had been issued against the petitioner since 17.01.2014. It is stated that the petitioner has carved a false and concocted story to file the instant petition only to harass the respondent, which is maintainable after three years. The respondent has also challenged the said agreement before the Civil Court at Mathura Senior Division Civil Mathura and the petitioner has been proceeded ex-parte since 17.02.2012. It is stated that the civil case is well within the knowledge of the petitioner. It is further stated that on the assistance of counsel for the petitioner, Hon'ble court dismissed the petition under Section 561-A Cr.P.C filed by the respondent, therefore, the petitioner is debarred from taking the plea after three years. It is stated that after lapse of three years, the petitioner is filing the said petition which even otherwise is maintainable. As per the averments made in the petition, petitioner admitted to have known the dismissal of the complaint in the second week of March, 2015 and obtained the copy on 25.03.2015 and the said petition was filed on 21.08.2015 even after lapse of five months and after 25.03.2015 the petitioner has to explain each& every day of delay, therefore, the instant petition is liable to be dismissed. Hence, the instant petition.