IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 1428 of 2010 Date of decision: 3.3.2011 Rajneesh Vasudeva …..Petitioner. Vs. Mohinder Singh & Ors. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. Ramakant Sharma, Advocate. For the Respondent : None. Kuldip Singh, J (Oral). This is a petition for granting leave to appeal against the judgment dated 25.9.2010 passed by the learned Judicial Magistrate Ist Class, Kandaghat, District Solan in Criminal Case No.12/3 of 2000 acquitting the respondents. 2. The brief facts of the case are that complainant alongwith his family members and friend Ramesh had booked rooms No. 4 and 5 which was occupied by them on 10.2.2000 and 11.2.2000 in Tourist Inn at Kyarighat. It has been alleged that they stayed in those rooms on 10.2.2000 and 11.2.2000 till 1.30 p.m. Thereafter the complainant alongwith his wife, children and friend Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… went to Shogi, Tara Devi and Shimla without making any payment of stay and food as they were to be there for the night. 3. It has been alleged when complainant and his family members returned back at about 9 p.m. on the same day and when they tried to enter into the rooms No.4 and 5 they came to know that their rooms have been illegally occupied by respondent No.3. The complainant and his wife and friend protested against such criminal tress pass and asked the Manager to get his rooms vacated; the Manager expressed his helplessness and told that these rooms have been occupied. The complainant also came to know that his luggage and other articles were removed from the rooms without his consent and were kept in the reception. 4. On protest made by the complainant, his family members and friend the accused persons became furious and threatened them to go away immediately from the premises of Tourist Inn. The complainant informed the SHO, Police Station, Kandaghat. On this, accused persons became more furious and informed the complainant to teach them lesson and send a wireless message to SHO, Police Station, Kandaghat to visit the spot. 5. The complainant was arrested and taken to Police Station, Kandaghat on the direction and instruction of respondents No.1 and 2 without any fault. The family members of the complainant spent whole night out side the Police Station. The complainant was produced before Sub Divisional Magistrate, Kandaghat on 12.2.2000 at about 2 p.m. and was set at liberty after obtaining personal and surety bonds. …3… 6. The complainant filed the complaint on 22/23.2.2000. It has been alleged that respondent No.1 had got a false case registered against the complainant in which he alongwith his wife and friend Ramesh were arrested on 13.2.2000 and released on bail on 21.2.2000. The complainant led preliminary evidence. The respondents were summoned for offences punishable under Sections 448, 335, 504 and 506 read with Section 34 IPC and accordingly notice of accusation was put to them. They pleaded not guilty and claimed trial. On completion of complainant’s evidence, statements of respondents under Section 313 Cr.P.C. were recorded, they denied the case of the complainant. The respondents led no evidence in defence. The learned Magistrate ultimately acquitted the respondents; hence petition for leave to file appeal. 7. I have heard learned counsel for the petitioner and have also gone through the record. According to petitioner the occurrence took place at 9 pm. on 11.2.2000. The complaint was filed on 22/23.2.2000. It is also the case of the applicant that occurrence took place in presence of several persons including the staff of the Tourist Inn at Kyarighat. The complainant has appeared in the witness box. CW-2 Ramesh Kumar friend of the complainant has also appeared as a witness. 8. The complainant claimed that in another case he, his wife were arrested on 13.2.2000 and were released on bail on 21.2.2000. The learned trial Magistrate has recorded a specific finding that there is no evidence on record that complainant was in custody from 13.2.2000 to 21.2.2000, nor at the time of hearing of this …4… petition anything was shown from the record that in fact petitioner was in custody from 13.2.2000 to 21.2.2000. In these circumstances no fault can be found with the findings returned by the learned Magistrate that complainant has failed to explain delay in filing the complaint. 9. As per complaint, the complainant had booked rooms No.4 and 5 in Tourist Inn, Kyarighat on 10.2.2000 for two days i.e. 10.2.2000 and 11.2.2000. It has emerged from the evidence that complainant vacated the rooms occupied by him on 11.2.2000 at 12 noon vide Ex.CW-4/1. The alleged occurrence took place at 9 p.m. on 11.2.2000. The document Ex.CW-4/1 has been produced by the complainant himself. The complainant in his statement has not stated that Ex.CW4/1 has been falsely prepared or it is a forged document. The perusal of Ex.CW-4/1 indicates that complainant had left the accommodation occupied by him in Tourist Inn, Kyarighat on 11.2.2000 at 12 noon. It is not the case of complainant that after vacation of rooms No. 4 ,5 he reoccupied those rooms. 10. The complainant has not produced any other document to show that he was in occupation of rooms No.4 and 5 on 11.2.2000 at 9 p.m. The learned counsel for the applicant has relied entry No.271 in Ex.CW-4/13 showing that the rooms were booked by the complainant for 10.2.2000 and 11.2.2000. Ex.CW-4/13 is of no help to the complainant when Ex.CW-4/1 clearly establishes that the complainant had vacated the accommodation in Tourist Inn, Kyarighat on 11.2.2000 at 12 noon. It is a quite possible that initially the complainant had decided to stay at Tourist Inn, Kyarighat for …5… two days and therefore he booked the rooms for 10.2.2000 and 11.2.2000 vide Ex.CW-4/1 but later on he decided to leave the accommodation on 11.2.2000 at 12 noon. Once the complainant had vacated the rooms Nos. 4,5 on 11.2.2000 at 12 noon then there is no question of his occupying those rooms at 9 p.m. on 11.2.2000 when alleged occurrence took place concerning those two rooms. 11. The complainant has not examined any independent witness in support of his complaint. CW-2 Ramesh Kumar is a friend of complainant. There is no explanation why the independent witnesses who were present at the time of alleged occurrence have not been examined. The learned trial Court has considered the entire matter correctly. The view taken by the learned trial Magistrate emerges from the evidence on record. In these circumstances, leave refused. Petition dismissed. March 3, 2011 ( Kuldip Singh ) (sks) Judge