Joginder Kumar & Ors. vs Jawahar Lal
2012 Latest Caselaw 5043 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  Crl.L.P.No.127/2012

                                  Decided on :     27th August, 2012

JOGINDER KUMAR & ORS.                            ..... Petitioners
              Through:         Mr. Ruchir Batra, Adv.

                         versus

JAWAHAR LAL                                 ..... Respondent
                    Through:   None

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

Crl.M.A.2787/2012

1. Allowed, subject to the deficiency being rectified.

Crl.L.P.127/2012 & Crl.M.A,.2786/2012

2. This is a leave to appeal filed by the petitioners under Section

378 Cr.P.C. against the order dated 21.10.2011 passed by the

learned Metropolitan Magistrate, Saket Courts, New Delhi,

dismissing the complaint titled Joginder Kumar & Other -vs-

SHO, P.S. Lajpat Nagar & Other.

3. Briefly stated, the facts of the case are that a complaint under

Sections 406/420/423/506 IPC was filed by the petitioners

against the respondent/accused persons. It has been alleged

that the complainants, in the first week of May, 2005, were

approached by the respondent no.2, who is a property dealer,

who offered to sell his property bearing No.D-1/9, Lajpat

Nagar, New Delhi measuring 100 yards. The accused no.2,

Roshan Lal Gulati approached the petitioners for

negotiations on 18.5.2005 and the deal was struck for a sum

of ` 22,50,000/-. It is submitted that the petitioners were

cheated by the SHO, PS:Lajpat Nagar, New Delhi. The Court

heard the arguments and passed an order of summoning. The

petitioners were adducing pre-charge evidence against the

accused persons. They have filed on record the orders passed

from 8.4.2009 till 21.10.2011. The order dated 8.4.2009

shows that the cross-examination of CW3 was deferred and

the matter was adjourned to 3.7.2009. The petitioners have

stated that on 21.10.2011, they could not appear, because of

which the complaint was dismissed, as he was down with

some ailment.

4. The Court directed the petitioners to file the previous order

sheets. A perusal of the order sheets show a pathetic state of

affairs inasmuch as the petitioners, after filing of the

complaint, had not been very vigilant in pursuing their

complaint. They have not been appearing in Court, although

the accused persons were invariably attending it. This is

evident from the fact that on 3.2.2010, 23.7.2010,

30.11.2010, 4.2.2011, 21.2.2011, 1.6.2011 and 27.9.2011

there was no appearance on behalf of the petitioners, either in

person or through their counsel, although the accused

persons were duly represented by their counsel. On

27.9.2011, the matter was adjourned to 21.10.2011. On

21.10.2011, as nobody had appeared, the Court, after waiting

till 2:00 P.M., dismissed the complaint in default as well as for

want of prosecution.

5. Feeling aggrieved by the order dated 21.10.2011, the present

petition has been filed, seeking leave to appeal, accompanied

by an application seeking condonation of 60 days delay in

filing the same.

6. I have heard the learned counsel for the petitioner.

7. The fact that the petitioners were constantly not appearing for

almost two years clearly shows that it is not a case where, by

any stretch of imagination, it can be said that the petitioners

were prevented by 'sufficient cause' from appearing on

21.10.2011 or that there was justification for them being

absent on that date. It has been noticed that one of the major

reasons for delay in the disposal of criminal cases is only on

account of the non-appearance of the complainants and the

undue indulgence shown by the Courts in adjourning the

matter repeatedly, as has been done in the instant case. In

the instant case, the learned Magistrate has gone out of the

way and shown undue sympathy and indulgence to the

complainants, i.e., the petitioners, by not taking a

precipitative action of dismissing the complaint.

8. I feel since the petitioners were continuously absent for

almost two years and the accused persons were duly

represented through their counsel, the only purpose of filing

the complaint is to harass the accused persons.

9. For the aforementioned reasons, I feel that it will be setting a

very bad precedent to grant leave to appeal in cases like this

where the petitioners have been grossly negligent in pursuing

their complaint.

10. I, accordingly, feel that there is no justification for condoning

the delay of 60 days in filing the leave to appeal or even if it

is condoned on merits also, the impugned order does not

deserve to be set aside. The petition, on the contrary, is

without merit and the same is dismissed.

V.K. SHALI, J.

August 27, 2012 'tp'