ASHOK KUMAR GODDHYAN Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) has bren filed against the order dated 2.6.2001 passed by Shri A.K. Singh, Judicial Magistrate, 1st Class, Dhanbad. in C.P. Case No. 355 of 1989, whereby and whereunder, the learned Magistrate rejected the petition under Section 311 of the Code for further examination and cross -examination of the complainant/petitioner by the opposite party No. 2.

(2.) THE prosecution case in short, as stated is that the petitioner was the subscriber of Telephone No. 201 and his father was the subscriber of Telephone No. 285. The bills of both the telephones were being paid regularly but the Telephone Department submitted excessive bills against Telephone Nos. 201 and 285 in the year 1988 by tempering the meter and as the payment could not be made, both the telephones were disconnected. Even after disconnection of the telephones, bills for use of the telephones were forwarded to the petitioner and his father. Accordingly, the complaint case was filed.

(3.) THE learned counsel appearing on behalf of the petitioner confined his argument as regards to the rejection of the petition under Section 311 of the Code and submitted that though the petitioner/complainant was examined but his examination could not be concluded only because of the fact that objection was raised on behalf of opposite party No. 2/accused person about marking of the documents as Exhibits and, therefore, there was no laches on the part of the petitioner/ complainant for his examination. It is further submitted that opposite party No. 2 had earlier filed a petition before this Court being Cr. Misc. No. 4964 of 1996(R) for quashing of issue of processes against the accused persons and the said petition was disposed of with an observation that the counsel for the opposite party, who is complainant in the Court below, also submitted that he undertakes that the complainants case will be concluded within two months and if the complainant will not cooperate then the trial Court is competent to close the prosecution case. It is also submitted that opposite party No. 2/accused had filed his objection against the marking of carbon copy of some documents as Exhibits and, due to which, the complainant could not be examined. There was no Presiding Officer from 12.1.1998 to 18.12.1998 and thereafter the said case was transferred on 24.11.1998 and the next date was fixed on 17.1.1999. The petitioner/ complainant was present in Court on 4.2.1999 and 15.3.1999 but his examination and cross -examination was not done. On 12.7.1999 the petitioner filed a petition before the Court below that B and C Files are not available with the main record and thereafter the Court below passed an order on 12.7.1999 itself that all the Exhibited documents are not attached with the case record and, therefore, write letter to the Court of Sri Om Prakash, Judicial Magistrate, 1st Class, Dhanbad, requesting him to direct the Office Clerk (O/C) to send the Exhibits to this Court. The petitioner again appeared before the Court on 28.9.1999 but his examination could not be done. Again the petitioner appeared on 6.12.1999 but his examination could not be done. On 3.1.2001 a submission was made on behalf of opposite party No. 2 that he did not like to file any objection to the marking of carbon copy of the documents as Exhibits. However, the Court closed the case on 20.2.2O01 for non - examination of the petitioner/ complainant but the evidence of the complainant/petitioner is essential to arrive at the correct conclusion of the case and there was no laches on the part of the complainant/petitioner in delay of the disposal of the case. Counsel for the petitioner also relied upon a case of the Supreme Court in Shailendra Kumar v. State of Bihar and Ors., 2002 AIR Jhar HCR 42 : 2002 (1) East Cr C 81 (SC).