In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Misc. No.M-6762 of 2009 ..... Date of decision:9.3.2009 Madan Gopal .....Petitioner v. Subhash Chander .....Respondent .... Present: Mr. Deepak Gupta, Advocate for the petitioner. ..... S.S. Saron, J. This petition under Section 482 of the Code of Criminal Procedure (`Cr.P.C.' - for short) has been filed seeking quashing of the order dated 20.1.2007 (Annexure-P.3) passed by the Judicial Magistrate Ist Class, Ambala Cantt. in a criminal complaint dated 27.3.2002 (Annexure-P.1) vide which the complaint filed by the petitioner under Section 420 Indian Penal Code (`IPC' – for short) against the respondent was dismissed for want of prosecution and accordingly, the respondent being an accused was discharged. A further prayer is made for quashing the order dated 21.1.2009 (Annexure-P.5) passed by the learned Additional Sessions Judge, Ambala in terms of which the criminal revision filed by the petitioner against the order dated 20.1.2007 (Annexure-P.3) has been dismissed. The facts of the case are that the complainant-petitioner was contacted by the accused-respondent in the month of October 2001 as the accused-respondent was selling his plot situated in Village Boh, Tehsil and District Ambala. The complainant-petitioner after visiting the above Cr. Misc. No.M-6762 of 2009 [2] mentioned plot agreed to purchase the same for a consideration of Rs.1,40,000/-. An agreement dated 27.10.2001 in this regard was entered into between the parties and a sum of Rs.20,000/- as earnest money was paid to the respondent. The sale deed was to be executed in favour of the complainant-petitioner on payment of balance amount of Rs.1,20,000/-. The petitioner went to the office of Sub- Registrar, Ambala on 25.2.2002 along with the balance sale consideration of Rs.1,20,000/- but the respondent did not turn up. Accordingly, the petitioner got an affidavit attested from the Executive Magistrate/Sub-Registrar on the same day. Thereafter, the respondent was approached time and again by the petitioner. Later, the petitioner came to know that the respondent in fact was not owner of the plot which was part of Khasra No.65//24/1 situated in Village Boh. In this manner, the respondent had cheated the petitioner for an amount of Rs.20,000/-. Accordingly, criminal complaint (Annexure-P.1) was filed. The petitioner during his preliminary evidence examined Mohan Singh (CW-1), Sunil Kumar (CW-2) and examined himself as CW- 3; besides, documents were also tendered in evidence. After considering the evidence led by the petitioner, the learned trial Court summoned the respondent vide order dated 22.10.2002 (Annexure-P.2). The petitioner it is alleged kept on appearing on the dates fixed in the above mentioned case before the trial Court but somehow he could not appear on 20.1.2007. Accordingly, his complaint was dismissed for want of prosecution by order dated 20.1.2007 (Annexure-P.3). The respondent was accordingly discharged. The petitioner filed a revision petition (Annexure-P.4) against the said order. The learned Additional Sessions Judge, Ambala vide his impugned order dated 21.1.2009 (Annexure-P.5) has dismissed the revision Cr. Misc. No.M-6762 of 2009 [3] petition. Learned counsel for the petitioner has submitted that the order dated 20.1.2007 (Annexure-P.3) passed by the learned Judicial Magistrate Ist Class, Ambala and the order dated 20.1.2009 (Annexure-P.5) passed by the learned Additional Sessions Judge, Ambala are based on mere conjectures and surmises. The petitioner in fact had not appeared before the learned trial Court on 20.1.2007 for the reason that his counsel had wrongly noted the date fixed in the case as 22.1.2007 in his diary. Had the learned counsel for the petitioner noted the correct date then at least he (counsel for the petitioner) would have appeared on the said date on behalf of the petitioner. Besides, the petitioner is a local resident of Ambala itself and had his counsel been aware of the date fixed as 20.1.2007 he could have called him telephonically even. Therefore, it is submitted that it is evident that a wrong date of 22.1.2007 instead of 20.1.2007 was noted by the counsel. It is also submitted that in view of the dismissal of complaint in default a second complaint is not maintainable in view of the judgment of this Court in Jitender Bajaj v. State (U.T. Chandigarh) and others, 2005 (3) RCR (Cr.) 69. Therefore, it is submitted that the impugned orders (Annexure-P.1 and P.3) are liable to be set aside. After hearing learned counsel for the petitioner and giving my thoughtful consideration to the matter it may be noticed that on the basis of complaint (Annexure-P.1) the learned Judicial Magistrate Ist Class, Ambala Cantt. vide order dated 22.10.2002 (Annexure-P.2) summoned the respondent as a prima facie case was made out for the offence under Section 420 IPC. When the case was taken up on 20.1.2007, no one put in appearance on behalf of the complainant-petitioner. It was observed that Cr. Misc. No.M-6762 of 2009 [4] the case was called several times before as well as after break but none had appeared on behalf of the complainant. It was already 12.50 p.m. and as the Court had waited sufficiently for the complainant, the complaint was dismissed for want of prosecution and the accused was discharged. His bail bond and surety bond were also discharged. The petitioner aggrieved against the order dated 20.1.2007 (Annexure-P.3) filed a revision petition (Annexure-P.4). It was stated that inadvertently a wrong date of 22.1.2007 instead of 20.1.2007 was noted. The learned Additional Sessions Judge after notice to the parties and hearing them held that the impugned order was well merited. It was observed that in terms of Section 249 Cr.P.C. if a case could be lawfully compounded and the complainant was absent on the date of hearing, the Magistrate in his discretion, before a charge has been framed, can discharge the accused. It was noticed that the complainant in fact had absented himself in the case earlier also. However, he was issued a notice to appear. After appearance he had again remained absent. Therefore, as per Section 249 Cr.P.C. the Magistrate could dismiss the complaint and discharge the accused if the offence could be lawfully compounded. It was also noticed that there was no affidavit of the counsel for the petitioner who had represented him before the learned trial Magistrate that he had noted down the wrong date of 22.1.2007 as the next date of hearing in the case. A perusal of the order dated 21.1.2009 (Annexure-P.5) passed by the learned Additional Sessions Judge shows that after the accused-respondent was summoned and had put in appearance he was released on bail on 19.11.2003 on which date the case was adjourned to 3.7.2004. However, on the said adjourned date the complainant was not Cr. Misc. No.M-6762 of 2009 [5] present and the learned Magistrate ordered that a notice be issued to him. Thereafter, the complainant-petitioner appeared in the Court on 4.7.2006 and the case was adjourned to 20.1.2007. On 20.1.2007, the order (Annexure-P.3) was passed by the learned trial Magistrate dismissing the complaint in default. Section 249 Cr.P.C. enjoins that when the proceedings have been instituted upon a complaint, and on the date fixed for hearing of the case, the complainant is absent, and the offence may lawfully be compounded or is not a cognizable offence, the Magistrate may, in his discretion notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused. The offence under Section 420 IPC in terms of the provisions of section 320 (2) Cr.P.C. can be compounded with the person cheated and with the permission of the Court before which the prosecution for such offence is pending. Therefore, the offence under Section 420 IPC being compoundable and the complainant being absent on the date fixed before the Court, the learned Magistrate in his discretion could dismiss the same in view of the provisions of Section 249 Cr.P.C. As already noticed that the petitioner in fact was not present on an earlier date also that was fixed in the case i.e. on 3.7.2004. The learned Magistrate, however, ordered for issuance of a notice to the complainant and he appeared in Court on 4.7.2006 and then again did not appear on 20.1.2007 when the order dismissing the complaint was passed. Therefore, there is no infirmity or illegality in the order of the learned Courts below in dismissing the complaint for non-appearance of the complainant-petitioner. Besides, the conduct of the petitioner is that he had remained absent on an earlier date also but he was issued a notice for his Cr. Misc. No.M-6762 of 2009 [6] appearance. Despite that he again remained absent. In the case of Jitender Bajaj v. State (U.T. Chandigarh) (supra) referred to by learned counsel for the petitioner the question that was considered was whether a second complaint in a summons case filed on the same set of facts and allegations is maintainable when the first complaint was dismissed for non-appearance of the complainant and his counsel under Section 256 Cr.P.C. In the said case, the complainant was not present in Court on the date fixed for hearing but the accused was present and the Judicial Magistrate decided not to adjourn the hearing of the case to some other day and acquitted the accused. The said order of dismissal of the complaint and acquittal of the accused became final. It was held that an accused can be tried again with the permission of the Court but in a summons case if the complaint is dismissed for non- appearance of the complainant or his counsel it would mean acquittal of accused after full trial and a second complaint was held to be not competent. A `warrant case’ has been defined in Section 2(x) Cr.P.C. to mean a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Section 2(w) Cr.P.C. defines `summons case’ to mean a case relating to an offence, and not being a warrant case. The offence under Section 420 IPC in which the respondent had been summoned is punishable with imprisonment of either description for a term which may extend to seven years besides liability to pay fine. Therefore, the complaint which has been dismissed for default was to be tried as a warrant case and not a summons case. In Jitender Bajaj v. State (U.T. Chandigarh) and others (supra), it was held that a second complaint in a summons case is not maintainable. Chapter XIX Cr.P.C. relates to `trial of Cr. Misc. No.M-6762 of 2009 [7] warrant cases by Magistrates’. Under heading `B’ of Chapter XIX it is provided for cases instituted otherwise than on police report. Section 249 Cr.P.C. falls under heading `C’ of Chapter XIX and relates to conclusion of trial of a warrant case. The complaint of the petitioner has been dismissed in terms of Section 249 Cr.P.C. i.e. under the procedure provided for conclusion of trial in a warrant case. Section 256 Cr.P.C. provides for trial of summons cases by Magistrate. In Jitender Bajaj's case (supra), it was held that if a summons case is dismissed under Section 256 Cr.P.C. the second complaint would be barred. However, if it is dismissed under Section 249 Cr.P.C. case can be tried again with the permission of the Court. The present is a case which has been dismissed under Section 249 Cr.P.C. which relates to the procedure provided for trial of warrant cases by Magistrates. Therefore, reliance placed by the learned counsel for the petitioner on the said decision is misconceived. In view of the above, there is no merit in this petition and the same is accordingly dismissed. March 9, 2009. (S.S. Saron) Judge *hsp*