Chattisgarh High Court
Shivnarayan Jaiswal (Died Through Lrs) vs Gagan Rathi on 24 March, 2025
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
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2025:CGHC:14020
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
ACQA No. 20 of 2019
1 - Shivnarayan Jaiswal (Died Through Lrs) As Per Honble Court Order Dated
09-07-2024, District : Raigarh, Chhattisgarh
1.1 - Manoranjan Jaiswal S/o Late Shivnarayan Jaiswal Aged About 70 Years
R/o H.B. Road, Distillery Compound Lalpur Ranchi Kanke, Ranchi
(Jharkhand)
... Petitioner(s)
versus
1 - Gagan Rathi S/o Shri Madanlal Rathi Aged About 40 Years Occupation
Business Partner Shri Krishna Builders And Devlopers Gharghoda
Road ,jagatpur ,raigarh Chhattisgarh , R/o Housing Board Colony
Mukutnagar Beladula ,raigarh District- Raigarh, Chhattisgarh., District :
Raigarh, Chhattisgarh
2 - Pawan Kumar Agrawal S/o Seduram Agrawal Aged About 46 Years
Occupation Business Partner Shri Krishna Builders And Devlopers
Gharghoda Road ,jagatpur ,raigarh Chhattisgarh , R/o Vidhya Nagar
Bilaspur ,district- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh
... Respondent
For Appellant : Mr. Vineet Kumar Pandey, Advocate.
For Respondents : Mr. Ankit Singhal, Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas
Order On Board
24.03.2025
1. The appellant/complainant has filed this appeal assailing the order
dated 12.10.2018 passed by the learned Judicial Magistrate First
Class, Raigarh, District- Raigarh (C.G.) in Complaint Case No.
2838/2018 by which the accused/respondents have been discharged
for commission of offence under Sections 419, 420, 466, 468, 471/34
of IPC as on 10.10.2018, the complainant’s right to lead evidence
before framing of charge, has been closed.
Digitally
signed by
ARUN
ARUN KUMAR
KUMAR DEWANGAN
DEWANGAN Date:
2025.04.01
10:48:29
+0530
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2. The brief facts as reflected from record are that the
complainant/appellant filed an application under Section 200 of the
Cr.P.C. against the accused namely Gagan Rathi & Pawan Kumar
Agrawal under Sections 420, 467, 468, 471 read with Section 34 of
IPC on 09.05.2011 alleging that they have prepared forged signature of
the applicants and got diversion of the land belong to the complainant
situated at Village- Jagatpur, Patwari Halka No. 14, Tahsil & District-
Raigarh. It is expedient for this Court to extract the material order-sheet
of the case to demonstrate how the trial is being delayed by the
accused by taking various steps with intention to drag the trial.
3. On 11.05.2011, learned Chief Judicial Magistrate directed to call for the
police report and fixed case for 17.06.2011. On 03.08.2011, the Police
report was produced and the matter was fixed on 29.08.2011 for
preliminary evidence and proceedings were continued for recording
evidence of the complainant and finally statement of the accused was
recorded on 30.11.2012 and thereafter the matter was fixed for further
evidence before registration of complaint. As per the complainant since
the Government’s records were manipulated, therefore, the
complainant has to move an application for calling of the records of
Revenue Case No. 244/A-2/2003-04 on 05.02.2013, which was not
made available by the State upto 19.03.2013 and the same was made
available by the State on 11.04.2013 and the matter was adjourned to
22.04.2013 & 25.04.2013. On 25.04.2013, the complainant filed an
application under Section 73 of the Indian Evidence Act which was
allowed by the trial Court and accordingly, handwriting expert was
appointed to submit report. On 07.06.2013, the complainant filed an
application for calling original records from handwriting expert and also
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moved an application for comparison of signature in original record and
also called for record from Deputy Registrar, Raigarh. Learned trial
Court rejected the application filed by the complainant for calling record
of registration from office of Deputy Registrar, Raigarh to ascertain
signature of the complainant in the original records and forged
signature of the complainant thereafter the proceedings were
continued. On 25.10.2013, the handwriting expert Dr. S.K. Dhenge
moved an application for granting permission to obtain photographs of
the signature of the complainant, the same was allowed.
4. On 03.12.2013, arguments were heard and the leaned Chief Judicial
Magistrate was pleased to register the offence as afore-stated against
the accused persons, issued arrest warrant against them and fixed the
case for 24.12.2013. On 24.12.2013, the arrest warrant could not serve
upon them, therefore, the matter was fixed on 04.02.2014 for
appearance of the accused. In the meantime, on 09.01.2014, the bail
application filed by the accused under Section 438 of the Cr.P.C. before
the learned Additional Sessions Judge, Raigarh which was dismissed
vide order dated 08.01.2014, as such records of the case were called
again and fixed the case on 04.02.2014 for appearance of the
accused. The arrest warrant could not serve upon the accused,
therefore, the matter was adjourned to 03.03.2014. On 03.03.2014, the
Presiding Officer had gone to High Court at Bilaspur for interview,
therefore, the matter was adjourned to 15.04.2014 for appearance of
the accused. On 17.06.2014, accused- Pawan Kumar Agrawal
appeared before the trial Court and submitted a copy of the order
passed by this Court by which the bail application filed under Section
438 of the Cr.P.C. was allowed. Though the arrest warrant was issued
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against the accused persons and the same was not served upon
another accused, therefore, a fresh arrest warrant was issued against
accused- Gagan Rathi for his appearance on 18.07.2014. Gagan Rathi
also got anticipatory bail by this Court vide order dated 21.08.2014 in
MCRCA No. 644/2014 as reflected from order-sheet dated 08.09.2014
as such, both the accused were released on anticipatory bail and the
matter was fixed for 18.12.2014. On 16.02.2015, the complainant filed
an application under Section 205 of the Cr.P.C. before the trial Court
which was rejected by the trial Court on 23.11.2015 and the matter was
fixed for complainant’s evidence. In the meantime, the accused filed a
revision petition bearing Criminal Revision No. 135/2015 before the
Third Additional Sessions Judge, Raigarh, therefore, the record was
called, as such, the matter was kept for further orders from the learned
Third Additional Sessions Judge. On 11.05.2016, the record was
returned back and the matter was fixed for complainant’s evidence on
02.07.2016. Both the parties moved an application under Section
284(1) of the Cr.P.C., which was rejected by the trial Court on
09.10.2017 and fixed the matter on 07.11.2017 for complainant
evidence and continued upto 10.10.2018.
5. On 10.10.2018, learned trial Court closed the right of the complainant
to lead evidence on the count that the matter is pending for more than
five years. On that day at about 1:20 p.m. another counsel for the
complainant filed memo of appearance which was taken on record and
the matter was fixed on 11.10.2018 and on 11.10.2018, the matter was
adjourned to 12.10.2018. On 12.10.2018 at 12.55 p.m., neither the
complainant not his counsel could not appear before the trial Court,
therefore, his argument right before charge was closed by the trial
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Court the accused were discharged as the complainant has not lead
any evidence.
6. On 12.10.2018 at 1:30 p.m., counsel for the complainant moved an
application under Section 309 of the Cr.P.C. for stay of the
proceedings, which was rejected and accordingly, it has acquitted the
accused. Being aggrieved with the order dated 10.10.2018 &
12.10.2018, the appellant preferred petition bearing CRMP No.
2461/2018 which has been converted into regular acquittal appeal vide
this Court’s order dated 10.01.2019.
7. Learned counsel for the appellant/complainant would submit that from
perusal of the record, it is quite vivid that the complainant was taking
every steps to prove his case, as such the delay cannot be attributed
by the complainant. On the contrary, the accused have also moved
various applications as well as revision petition before Sessions Judge
with intention to stall the trial, as such it cannot be said that the delay
is solely attributed by the complainant. He would further submit that the
learned trial Court has committed error in passing the impugned order
hence, the order passed by the learned trial Court on 12.10.2018 &
12.10.2018 dismissing the complaint after closing the right of the
complainant to lead evidence, suffers from perversity and illegality and
would for setting aside the same.
8. On the other hand, learned counsel for the respondents/accused
opposing the submission made by learned counsel for the
complainant/appellant would submit that the complaint was filed in the
year 2011 and since then no effective progress was made by the
complainant in the trial, therefore, the learned trial Court vide impugned
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order dated 12.10.2018 dismissed the complaint filed by the
complainant, which is just and proper and does not warrant any
interference by this Court and would pray for dismissal of the appeal.
9. To substantiate his submission, he would referred to the judgment
rendered by Division Bench of Orissa High Court in case of Agadhu
Das Vs. Baban Parida & ten others [1987 Cri LJ 555] and would
submit that Section 245 (2) of the Cr.P.C. provides that if the
complainant is unable to lead evidence then the Magistrate can
discharge the accused. He would further submit that since despite
granting opportunity to the complainant, he could not lead evidence
which shows that the complainant was not willing to continue with the
proceeding and would pray for dismissal of the appeal.
10. I have heard learned counsel for the parties and perused the
documents placed on record with utmost satisfaction.
11. So far as legal submission that if the complainant is unable to lead
evidence to prove his case, the Magistrate can very well discharge the
accused is undisputed but this Court has to ascertain whether in the
facts an circumstances of the case, closing of the right of the
complainant to lead evidence on 10.10.2018 and subsequent acquittal
of the accused on 12.10.2018 is legal and justified.
12. From perusal of record, it is quite vivid that the complainant was
prosecuting his case by moving proper application and arrest warrant
was also issued against the accused persons which was not served
upon the accused though they are resident of same district of Raigarh.
Despite this the learned trial Court has not taken any prompt action to
execute the warrant of arrest by issuing specific direction to the police
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to arrest them which clearly demonstrates that the accused who are
resident of the same district have adopted procedure to stall the
criminal trial, as such, the accused are responsible for delay,
demonstrates that how the criminal law justice is being adversely
affected by the accused.
13. It is pertinent to mention here that the trial Court has also not taken into
consideration the fact that the complainant is aged about 85 years now
and as per the allegation, he has lost his property due to fraud
committed by the accused and mechanically, without considering the
fact how the trial is adversely affected by conduct of the accused,
closed the complainant’s right to lead evidence and also acquitted the
accused, therefore, the impugned order dated 10.10.2018, 12.10.2018
are quashed the matter is remitted back to the stage of recording of the
evidence by the complainant. It is also directed that the trial Court
should see that the accused should not adopt undue delay tactic to
stall the proceedings. If the said situation arisen, the trial Court should
take coercive steps against the accused.
14. Considering these aspects of the matter and also considering the fact
that the case has not been decided on merit even after filing of the
complaint in the year 2011 and the manner in which the accused have
stalled the proceedings, the impugned orders dated 10.10.2018 &
12.10.2018 are deserve to be quashed and accordingly, they are
quashed.
15. Accordingly, the complaint case is restored to its original number. The
trial Court is directed to decide the same on merits in accordance with
law. It is made clear that this Court has not expressed anything on
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merit of the case. The trial Court will decide the case on its own merits
without being influenced from any of the observation made by this
Court.
16. Since the parties have already appeared before this Court, as such no
notice is required to be issued by the trial Court and the parties are
directed to appear before the concerned court on 08.05.2025 for
further proceeding. The Registry is directed to transmit the record to
the trial Court immediately.
17. With the aforesaid observation and direction, the instant appeal is
allowed.
Sd/-
(Narendra Kumar Vyas)
Judge
Arun
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