..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3846 OF 2007 Shashigopal & Anr. ..Applicants. Versus Versus Versus M/s.Rajesh Art Printers Pvt. Ltd., & Anr. ..Respondents. .... Mr.M.K.Thakore, Sr.Adv., i/b. Mr.Prakash Naik, Adv. for the Applicants. Mr.Y.M.Nakhawa, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATE : JANUARY 31, 2008 DATE : JANUARY 31, 2008 DATE : JANUARY 31, 2008 (IN CHAMBER, 2:35 PM) P.C.: 1. Heard the learned Counsel for the Applicants and the learned APP for the State. 2. The applicants are facing prosecution in Case No.1758/S/2000 which is pending before the learned Metropolitan Magistrate, 40th Court, Girgaon, Mumbai. The said case is under Section 138 read with Section 141 of Negotiable Instruments Act. ..(2).. 3. The learned Additional Chief Metropolitan Magistrate dismissed the complaint on 15.1.2005 observing that, "the complainant and his advocate are absent. No steps taken since long. Hence, the complaint stands dismissed u/Sec.256 of the Cr.P.C. ..." However, thereafter by order dated 16.8.2005 the learned ACMM set aside the order of dismissal of the complaint and transferred the matter to 14th Court, Girgaon for further trial as per law as all matters under Section 138 of N.I. Act were transferred to the 14th Court, Girgaon, Mumbai. Being aggrieved by this order, the present application has been preferred. 4. On perusal of the order of the learned MM dated 16.8.2005 it is seen that the accused had preferred an application for stay of the proceedings under Section 210 Cr.P.C. before the Magistrate which came to be rejected by order dated 13.1.2004. Against the said order the accused approached the revisional court which granted interim stay to the proceedings. However, inadvertently or due to some mistake the order of stay was not recorded in the proceedings as a ..(3).. result of which the proceedings went on and the proceedings showed that the parties were absent and thus the complaint came to be dismissed on 15.1.2005 under Section 256 Cr.P.C.. However, thereafter revision came to be dismissed. By the said order the revisional Court directed the trial Court i.e. the Court of the Magistrate to proceed further. This Writ was received from the Sessions Court by the Court of Magistrate on 12.5.2001. On perusal of the said Writ, the learned Magistrate held in the order dated 16.8.2005 that the earlier order of dismissal of the complaint under Section 256 Cr.P.C. stands cancelled and transferred the matter to 14th Court, Girgaon as stated above. 5. Mr.Thakore has contended, and in my opinion rightly so, that the Magistrate has no inherent power to review his order of dismissal of complaint and restore the case. In this connection, Mr.Thakore has placed reliance on the decision of the Supreme Court in the case of Maj. Maj. Maj. Genl. A.S. Gauraya and Anr. Vs. S.N. Thakur & Genl. A.S. Gauraya and Anr. Vs. S.N. Thakur & Genl. A.S. Gauraya and Anr. Vs. S.N. Thakur & Anr. Anr. Anr., reported in AIR 1986 SC 1440 AIR 1986 SC 1440 AIR 1986 SC 1440. In the said case it is observed that, " So far as the accused ..(4).. is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction, to restore the case. The Criminal P.C. does not contain any provision enabling the criminal court to exercise such an inherent power. Also, what the Court has to see is not whether the Code contains any provision prohibiting a Magistrate from entertaining an application to restore a dismissed complaint, but the task should be to find out whether the said Code contains any provision enabling a Magistrate to exercise an inherent jurisdiction which he otherwise does not have." From the various decisions of the Supreme Court including the one cited above, it was clearly laid-down that a Magistrate does not have the power to review his order. In this view of the matter, though the facts were such that the complaint deserved to be restored to file, the learned Magistrate could not have passed such an order. Hence, the order of the learned Magistrate dated 16.8.2005 deserves to ..(5).. be set-aside and is accordingly set-aside. 6. However, it is seen that it is an admitted position that the accused had preferred an application for stay before the learned Magistrate under Section 210 Cr.P.C. which came to be rejected. Being aggrieved by the said order, the accused preferred a revision and the revisional Court granted interim stay to the proceedings. On account of interim stay being granted to the proceedings, the proceedings could not have gone on before the Magistrate and obviously it was not expected that the complainant would attend the Court of the Magistrate. However on account of inadvertence, the stay was not recorded in the proceedings before the trial Court as a result of which the matter went on before the trial Court and on all the dates thereafter, the complainant was shown as absent. As observed above, in view of the stay granted by the revisional Court, the matter could not have gone on before the trial Court and the complainant was obviously not expected to attend the trial Court. On account of the stay granted by the revisional Court the ..(6).. complainant was not attending the trial Court and no fault can be found with the complainant for not attending the trial Court. In the present case, it is seen that on account of no fault on the part of the complainant, the complaint came to be dismissed. Hence, the order of dismissal of the complaint by the learned Magistrate dated 15.1.2005 deserves to be set-aside and is accordingly set-aside. The order of the Magistrate dated 16.8.2005 is also set-aside as the learned Magistrate could hot have restored the complaint. However, though the learned Magistrate could not have restored the complaint, this Court in its inherent powers can certainly do so. Hence the complaint being C.C.No.1758/S/2000 is restored to file. Trial Court to proceed further in accordance with law. The learned trial Judge to issue notice to the parties of the date fixed in the said complaint. 7. Application is disposed of accordingly. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)