1 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. ARUN KUMAR DEWANGAN Digitally signed by ARUN KUMAR DEWANGAN Date: 2025.04.01 10:48:29 +0530 2 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 3 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 4 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 5 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 6 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 7 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 8 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