N THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 175 of 2008 Jogender Lal Khanna ..…… petitoner Versus Kishore Thuteja and others …… Respondents …….. Mr. D.K.Sharma, Advocate for the petitioner. M r. Nandan Arya, A.G.A. for respondent no. 2. Hon’ble V.K. GUPTA, C. J. On 04.08.2009 vide a detailed order passed, this Court had condoned the delay in filing this revision petition. On that day, respondent no.1 was absent despite service and, therefore, the delay in filing the revision petition was condoned in the absence of respondent no.1. This Court had observed on 04.08.2009 that the revision petition should have been taken up for hearing and disposal that day itself since respondent no. 1 had not chosen to appear despite his due service, but in the interest of justice, a fresh notice was ordered to be issued qua respondent no. 1 for his service all over again. Application has been filed by the petitioner today in the Court seeking permission to place on record the petitioner’s affidavit of service. Prayer allowed. Affidavit of Jogender Lal Khanna, petitioner is taken on record. A perusal of this affidavit and the documents annexed therewith clearly show that respondent no. 1 Kishore Thuteja has been duly served the notice for appearance in this Court for today, the date specifically fixed for this purpose. Service has been effected upon respondent no. 1 through the Process Serving Agency of Commissioner of Police, Nagpur. Despite due service, respondent no.1 is absent once again. Under these circumstances, this Court has been left with no option but to dispose of this petition in the absence of respondent no. 1. Heard Mr. D.K.Sharma, learned counsel appearing for the petitioner and Mr. Nandan Arya, learned Asstt. Government Advocate for respondent no. 2. In this Criminal Revision Petition filed U/s 397 read with Section 2 401 of the Code of Criminal Procedure, the petitioner has assailed the judgment dated 31.01.2007 passed by the learned Additional Chief Judicial Magistrate, Haldwani, whereby, in a complaint filed by the petitioner against respondent no. 1 and another person, the learned Trial Court acquitted the accused of the offences U/Ss 452, 323, 504 and 506 I.P.C. The gravamen of the charge against the accused persons in the aforesaid complaint was that there were some disputes and differences between the parties relating to the alleged payment/non-payment of the price of goods since the parties had been having some transactions of supply of goods and payment of price thereof. According to the petitioner- complainant, on 30.04.1998, the accused persons came to the house of the complainant and by trespassing therein used force against the complainant, assaulted the complainant and abused him. They also threatened the complainant to kill him. The complainant went to the Police Station to lodge the First Information Report, but since no action was taken by the Police, the complainant filed the aforesaid complaint in the Court. The learned Trial Court, upon recording the statements of the complainant and his witnesses U/s 200 read with section 202 Cr.P.C., summoned the accused persons to face trial U/Ss 452, 3342, 504 and 506 I.P.C. During the course of trial, the petitioner-complainant apart from examining himself, produced two other prosecution witnesses, namely, Gurmeet Singh P.W.2 and Rakesh Joshi, P.W.3. The accused persons produced their sole witness, namely, D.W.1 Vinod Padrang. Whereas the witnesses of the petitioner-complainant corroborated his testimony and deposed that indeed respondent no. 1 and other person named as accused no. 2 in the complaint (S.K.Bharadwaj) came to the house of the complainant on 30.04.1998, assaulted the complainant, used force against him, abused him and threatened to kill him, the sole defence witness deposed about the accused no. 1 being in Nagpur on 29th and 30th April, 1998. Upon examination as well as appreciation of the evidence, the learned Trial Magistrate came to the conclusion that the offence against the 3 accused persons had not been proved by the petitioner-complainant and, therefore, acquitted the accused persons. After hearing the detailed arguments of Mr. D.K.Sharma, the learned counsel appearing for the petitioner and Mr. Nandan Arya, Asstt. Government Advocate appearing for respondent no. 2, I find that this is not a case where interference by this Court in the exercise of its revisional jurisdiction is warranted in terms of Section 397 read with Section 401 Cr.P.C. because in my considered opinion, the learned Trial Magistrate, upon appreciation of evidence, has returned the finding of acquittal. However, what I find from a perusal of the evidence as well as the impugned judgment is that the learned Trial Magistrate has patently erred, if I may say gravely erred, in holding, while acquitting the accused persons that the complainant-petitioner started the aforesaid prosecution against respondent no. 1 and S.K.Bharadwaj (accused) out of malice, ill-will or with a view to harass or trouble the accused persons. This finding of the learned Trial Magistrate is not based upon any material on record or upon correct and proper appreciation of evidence. Merely because the wife of the complainant had suffered a decree obtained against her by one of the accused persons, this fact by itself could not be termed as constituting any basis for the Trial Court to hold that the complaint was filed based on any malice, ill-will or with an intention to harass or trouble the accused persons. Neither in law nor on facts such a finding could be based upon the aforesaid sole factual basis. At best, the case put up by the parties in the complaint could be one of appreciation of evidence, this way or the other. Actually, I go so far as to say that the learned Trial Magistrate apparently did not believe the witnesses of the complainant only on account of some minor discrepancies in their statements. If the minor discrepancies were ignored, the statements of the witnesses of the complainant were or perhaps could be termed as believable or reliable. Similarly, a lot could be said about the creditworthiness or trustworthiness of the deposition of the sole defence witness, namely, D.W.1 Vinod Padrang. But I must hasten to add here that I am only making passing references to these aspects of the case, particularly the aspect relating to or arising out of the evidence of the 4 parties because I have already held that the interference by this Court with the Order of acquittal is not warranted. I am also not dwelling any further into any issue or aspect relating to appreciation of evidence for the reason that I have no intention at all to interfere in the acquittal of respondent no. 1. My only concern is that the learned Trial Magistrate should not have returned any finding to the effect that the complaint was filed by the petitioner-complainant maliciously, out of any ill-will or with an intention to harass or trouble the accused persons. This finding of the learned Trial Magistrate was not called for and it is wholly, patently and absolutely illegal, the same not being based upon any material on record or upon correct and proper appreciation of evidence. Even while the impugned judgment is upheld in so far as it relates to the acqauittal of the accused persons, the part of the judgment which has held that the petitioner-complainant had launched/initiated the prosecution maliciously, out of ill-will or with an intention to trouble or harass the accused persons is expunged as well as set aside with all the consequences. The revision petition is accordingly partly allowed to the aforesaid. No order as to costs. (V. K. Gupta, C.J.) 25.08.2009 A