DAVENDRE KUMAR Vs. ABDUL RAZAQ MALIK

JUDGEMENT

(1.) BOTH the petition-ers after having been summoned to face trial in a complaint filed by respondent titled abdul Razaq Malik v. Devinder Kumar batra and another pending before the learned 3rd Munsiff 1st Class, Jammu for the offence punishable under Sections 323, 342, 504 and 506 have knocked at the door of this court through the instant petition under Section 561-A Cr. P. C for quashing of the main complaint (Annexure-'d') and order (Annexure-'f') vide which the process has been issued.

(2.) RECORD reveals that notice was issued to the respondent, complainant way back in may, 2004. Meanwhile, proceedings before the trial Court were also ordered to be stayed. Despite service the respondent did not put in his appearance and ultimately the instant petition was admitted vide or-der dated 29. 8. 2005. Thereafter, post admit notice was also sent to respondent and trial court record also requisitioned. As per of-fice noting Mr. T. S. Malik, Advocate had furnished his vakalatnama on behalf of re-spondent. When the instant petition was taken up on 15th Sept. 2007 for its final dis-posal, Mr. Malik had not caused his appear-ance on behalf of respondent. It was, how-ever, adjourned for 29th Sept. 2007 on which date also the same was the position. How-ever, while adjourning the case once again it was made clear that on the next date, the instant petition would be disposed of on merits. When this case was taken up on 17. 11. 2007 for its disposal, even on that date mr. Malik had chosen not to come. I, therefore, heard Mr. Kohli, learned counsel for the petitioners and with his assistance perused the trial Court record.

(3.) MR. Kohli, while giving flash back of the case submitted that both the petition-ers have been falsely implicated in this case on frivolous grounds for certain ulterior motives as the respondent who had pur-chased a Toyota Car from the petitioners' company wanted to get some additional repairs upon which there arose a dispute with regard to some amount due from him for which Mr. Kohli relies upon annexures-'a', 'b' and 'c' respectively. He puts forth his view point on a technical ground submitting that Section 200 Cr. P. C. mandates the Magistrate to record the statement of the complainant and his witnesses upon oath and the process issued against the petitioner in the present case is on the basis of the statement of the complainant without oath. Therefore, such type of statement cannot form the basis for issuance of process under section 204 Cr. P. C. In order to strengthen his case he has drawn the attention of this Court to the preliminary evidence recorded by the trial Court where the statements of the witnesses have been recorded without administering oath.