Decided on January 25,1983

Vichai Ratnabash Shri Respondents


D.H.SHUKLA - (1.) The appellant Kharva Hiralal Damji filed a complaint against respondent No. 1 under sec. 500 of the Indian Penal Code in the Court of the Judicial Magistrate First Class at Veraval being Fozdari Case No. 1248 of 1977. It was the case of the appellant that he was working in the factory of the respondent No. 1 at Veraval and on 14 a charge sheet was issued by the respondent No. 1 wherein serious allegations were levelled against the appellant and in the submission of the appellant those allegations amounted to culpable defamation. The said complaint was fixed for hearing on 13-10-1977 on which date the appellant complainant could not remain present as being a Home Guard Cadet he was required to attend to Bandobast on account of the Prime Ministers visit to Veraval and therefore the learned Magistrate passed the following order: "The complainant is found absent when called out and hence the complaint is dismissed. 13-10-77. J.M.F.C."
(2.) The appellant submits that till that date of the order above quoted even the plea of the accused was not recorded.
(3.) The appellant thereafter lodged another complaint before the Judicial Magistrate First Class Veraval in Fozdari Case No. 3363 of 1977 The learned Magistrate passed an order on 16-10-1977 to issue summons under sec. 500 of the Indian Penal Code. The respondent No. 1 after filing his appearance submitted an application (Exh. 1) under sec. 300 of the Criminal Procedure Code and prayed that as per the provisions of the said section the second complaint could not lie as the First order of dismissal of the complaint which in fact amounted to an order of acquittal under sec. 256 of the Criminal Procedure Code continued to be in force. The learned Magistrate after hearing the parties on this application (Exh. 11) upheld the contention of respondent No. 1 and passed the following order: " Application is allowed. As the accused is acquitted in previous complaint of the same offence therefore this complaint is not legally tenable under sec. 300 of the Criminal Procedure Code and hence dismissed. Pronounced in the open Court on 19th August." ;

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