1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.413 OF 2009. M/s Durga Traders, throgh its Proprietor, Shri Govind S/o Deepchand Sakla, Age 30 years, Occ.Business, R/o Sambhaji Nagar, Jalna. ... Petitioner. Versus 1. The State of Maharashtra. 2. Buldhana Urban Cooperative Credit Society Limited, Branch Jalna, Near Sham Lodge, Bus Stand Road, Jalna. ... Respondents. ... Mr.Y.G.Somani, advocate holding for Mr.S.G.Ladda, advocate for the petitioner. Mr.K.S.Patil,A.P.P. for the State. Mr.A.D.Kasliwal, advocate for the Respondent No. 2. ... CORAM : V.R.KINGAONKAR,J. Date : 03.08.2009. PER COURT 1. Rule. Rule made returnable forthwith 2 and heard finally. 2. By this petition, the petitioner impugns judgment and order rendered by learned Sessions Judge, Jalna, in Criminal Revision Petition No.107/2008, whereby order rendered by the learned Judicial Magistrate (F.C.), Jalna, in STC No.3088/2005, directing restoration of the said Criminal case, which was dismissed in default, has been confirmed. 3. The petitioner is original accused against whom the Respondent No.2 instituted a private complaint case for offence U/s 138 of the N.I.Act, on account of bouncing of the cheque issued by it. The private complaint case (STC No.3088/2005) was on Board of hearing on 22.2.2008. The Respondent No.2 (complainant) was absent. The learned Judicial Magistrate directed dismissal of the complaint in default. However, on the same day, the learned advocate of the Respondent No.2 filed an application Exh.19 for restoration of the complaint case. The Judicial Magistrate allowed the request and recalled the 3 order of dismissal in default. The petitioner challenges the said order dated 22.2.2008. The Revisional Court upheld the said order and dismissed the Criminal Revision Application. 4. Heard learned counsel for the parties and learned A.P.P. 5. The short question for consideration is whether dismissal of the private complaint case amounts to acquittal U/s 256 of the Cr.P.C. and, therefore, the Magistrate becomes functus officio and has no jurisdiction to recall such order of dismissal. The learned counsel for the petitioner submits that the Magistrate can not restore the complaint case in absence of any power available under the Criminal Procedure Code. He would submit that the learned Magistrate exceeded the jurisdiction and ordered restoration without having inherent powers. He submitted that the Revisional Court committed patent error while dismissing the Revision Application. As against this, Mr.Kasliwal, supports the impugned orders. 4 6. It is important to notice the fact that Criminal complaint case was not scheduled for effective hearing. Still, however, on bare perusal of Section 256 of the Cr.P.C. it is manifestly clear that even when the complaint case is for appearance or for taking steps against the accused then also such dismissal can be ordered. This Court in various cases held that the Judicial Magistrate has no inherent power to restore the Criminal case which is disposed of. The Apex Court in "Bindeshwari Prasad Singh Vs. Kali Singh." AIR 1977 Supreme Court 2432, held that there is no power available with the Judicial Magistrate to review or calling a Judicial order passed by him. So, also, in "Maj. Genl. A.S. Gauraya and another Vs. S.N.Thakur and another" AIR 1986 Supreme Court 1440, the Apex Court held that Magistrate has no inherent power to Review his order of dismissal and restore the case. It is observed : "The Criminal P.C. does not contain any provision enabling the criminal court to exercise such an inherent 5 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." 7. In "Vinaykumar S/o Ashokkumar Maliwal Vs. Ramesh S/o Kishanlal Saboo" 2008 ALL MR (Cri.) 245, this Court had an occasion to consider almost identical fact situation. After taking survey of a catena of case law, this Court held that the Judicial Magistrate has no power to review his own order of dismissal. The only remedy available in such a situation is to prefer an appeal against order of acquittal. A Division Bench of this Court in "Gajanan Parshuram Chopade Vs.Mahatma Jyotirao Phule Gramin Bigarsheti Maryadit" 2009 (1) Bom.C.R. (Cri.) 642, confirmed the above view. The question referred to the 6 Hon'ble Division Bench was thus : "Whether a Revision Application U/s 397 of the Cr.P.C., 1973, for challenging the order of dismissal of complaint U/s 256 of the said Code, 1973, is maintainable or whether the only remedy available against the said order is to prefer an appeal U/s 378 of the Cr.P.C., 1973." While answering the said question, various views of this Court and other Courts have been examined by the Hon'ble Division Bench. The Hon'ble Division Bench held that in such a case, the only remedy available to the complainant is by way of preferring an appeal. Thus, there is consistent view taken by this Court that a Magistrate has no inherent jurisdiction to recall the order of dismissal. Faced with this difficulty, learned advocate for the Respondent No.2 (Complainant) invited my attention to order rendered by this Court on 1.4.2009 in Criminal Appeal No.132/2008. It appears that the earlier view taken by the 7 Court was not brought to the notice of this Court and as such the direction was given to restore the complaint case by this Court while allowing the appeal and holding that the complaint case was required to be restored. One can not be oblivious of the fact situation of the said case. In that case, the private complaint case was scheduled for hearing and was dismissed. The appeal was preferred by the complainant and it came to be allowed. The observations are incidentally made while allowing the appeal of the complainant. In the present case, the Writ Petition is filed by the original accused and the question is not about the powers of the appellate Court which this Court exercised in Criminal Appeal No.132/2008 (Babanrao S/o Kashinath Adhav Vs. Eknath S/o Bhanudas Pandit and another). 8. Mr.Kasliwal, also seeks to rely on observations in "Mohd. Azeem Vs. A. Vankatesh and another" 2003 ALL MR (Cri.) 400 (S.C.). The leaned Sessions Judge also heavily relied on observations in the above case. It is true, no doubt, that the Apex Court held that dismissal 8 for default of a complaint due to non appearance on a single date due to bonafide mistake of the complainant was not proper. It is also observed that the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. At this juncture, it is necessary to notice that the Apex Court exercised the appellate jurisdiction under Special Leave to Appeal. The powers available under Article 136 of the Constitution of India are wide enough. The question whether the Magistrate has inherent jurisdiction to recall his own order was not directly dealt with, particularly, in the light of earlier view taken in "Bindeshwari Prasad Singh Vs. Kali Singh and Maj. Genl. A.S. Gauraya and another Vs. S.N.Thakur and another (supra). Mr.Kasliwal, also referred to certain observations in "Didigam Bikshapathi and another Vs. State of A.P. 2008 ALL MR (Cri) 870 (SC). The general observations of the Apex Court that no legislative enactment dealing with procedure can provide for all cases that may possibly arise are in relation to the exercise of powers U/s 482 of the Cr.P.C. The 9 observations can not be stretched further so as to infer availability of inherent powers to a Magistrate for recalling/reviewing his own dismissal order. 9. Considering foregoing discussion and settled legal position, I have no hesitation in holding that the Magistrate and the learned Sessions Judge committed patent error while recalling the order of dismissal and permitting restoration of the Criminal complaint case which was dismissed in default. Hence, the petition is allowed. The impugned orders are quashed. Rule made absolute accordingly. The Respondent No.2 is at liberty to prefer appeal. No costs. (V.R.KINGAONKAR,J.) asp/office/Crwp41309