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CRL.L.P. 291/2012
FANCY FASHIONS Petitioner
Through: Mr. J.P. Sengh, Sr. Advocate with Mr. Shantanu Singh and Ms. Ankita Gupta, Advocates.
Through: Mr. Niraj Kumar Singh and Mr. Vineet Kumar, Advocates.
21.01.2013 I have heard learned counsel for the parties.
Leave to appeal is granted.
Petition is disposed of Crl. Appeal No! ^^2013 (to be numbered)
Registry to number the appeal.
In the present petition the Appellant impugns the order dated 16^''
April, 2012 whereby the complaint of the Appellant was dismissed for non- appearance of the authorized representative of the Appellant and on the ground that repeated adjournments have been given to the Complainant for tendering the affidavit however, the same has not been filed and thus the
Complainant appears to be genuinely not interested in prosecuting the complaint.
2013:DHC:8340 I have heard learned counsel for the parties and perused the Trial
I
Court record.
A perusal of the Trial Court record shows that on the same date an application for recalling of the impugned order was filed before the learned
Trial Court. While dismissing the said application as not maintainable learned Trial court recorded the contention of the Appellant that the authorized representative of the Complainant was late due to traffic and when he appeared he found that the case was dismissed in default for non- appearance though the clerk of the learned counsel for the Complainant had appeared and sought pass-over. The learned Trial court in the order dated
16"' April, 2012 itself has observed that it had to look after the work ofthe
Link Metropolitan Magistrate as well. Itthus appeared that due to the heavy board when the clerk sought the pass-over, it could not be given and thus the matter was dismissed for non-prosecution.
Learned counsel for the Respondent states that there is no illegality in the impugned order as Section 256 Cr.P.C. mandates the Court to dismiss the complaint in case the Complainant is not present before the Court. This being the situation this Court will not interfere inthe appeal and set aside the impugned order. It may be noted that the present is not a case of dismissal of the complaint on merits but for non-appearance of the authorized representative of the Complainant. In the present case the authorized representative ofthe Complainant had tendered its evidence way back inthe year 2009 and the matter was listed for cross-examination. Thereafter the clerk of the Standard Chartered Bank was also called as witness and had to be discharged as unexamined as the accused was absent. Thereafter non-
CRL.L.P. 291/2012 bailable warrants of the accused were issued. The matter continued jvhen exemptions from appearance were sought from both sides. After the
Authorized Representative of the Complainant was partly examined the accused moved an application under Section 254 Cr.P.C. Arguments on the said application could not concluded and in the meantime vide order dated
ORDER
11 February, 2011 it was noted that the cross-examination of CWl could not be completed and the learned counsel for the Complainant requested for adjournment as the witness had undergone treatment and was advised tv\'o months' bed rest. Even on 14"' May, 2011 the CWl could not appear as he had undergone heart surgery. In the light of this fact on 21®' July, 2011 the Appellant filed an application for substitution of the Complainant, which application was allowed on 22"'' September, 2011. No doubt, on that date and thereafter three opportunities were granted by the learned Trial Court to the Complainant to file the affidavit of the newly substituted authorized representative however, the same was not filed and thus the learned Trial Court on 16"' April, 2012 dismissed the complaint for non-appearance ofthe authorized representative of the complainant. Learned counsel for the Appellant states that the affidavit of the Complainant was ready on 16"' April, 2012 and because of the traffic he could notreach intime and thus the complaint gotdismissed. In the present case it is not that the Complainant had never tendered the affidavit. Earlier affidavit of CWl had been tendered however, in view of the fact that the earlier authorized representative of the Complainant fell ill, the Appellant had to move an application for substitution of the Complainant and thus file a fresh affidavit. CRL.L.P. 291/2012 Page[3] of[4] In view ofthe peculiar facts and circumstances ofthe case, lideem it fit to allow the appeal, subject to the cost of Rs. 30,000/- to be paid to the Respondent No. 1 and Respondent No. 3. The impugned order is set aside the complaint is restored to its original position. Parties are directed to appear before the learned Trial Court on 25"' February, 2013, on which date Rs. 15,000/- each will be paid to Respondent No. 1 and Respondent No. 3 as the Respondent no. 2 has expired. Appeal is disposed of Trial Court record be sent back.
MUKTA GUPTA, J. JANUARY 21, 2013 'vn'