1108cwp363.09.odt 1/5 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, NAGPUR BENCH, NAGPUR Criminal Writ Petition No. 363 of 2009 1. SANJAY S/O SURYAKANT SHAH C/O C.P. MEDICALS, GANDHI CHOWK, TQ. AND DISTT. AKOLA .. PETITIONER/S VERSUS 1. SUSHILKUMAR NAVALKISHOR MURARKA AND ONE ANOTHER R/O FLAT NO.6, VRUNDAVAN APARTMENT, BEHIND GOVT. MILK SCHEME CENTRE, AKOLA P.S. CIVIL LINES, AKOLA 2. STATE OF MAHARASHTRA .. RESPONDENT/S ..................................................................................................................................... Mr. N. A. Gaikwad, Advocate for the petitioner. None for the respondents. ..................................................................................................................................... CORAM:- R. Y. GANOO, J. DATED :- 11TH AUGUST, 2009. P. C. : 1. Respondent No. 1 had filed complaint under Section 138 of the Negotiable of Instruments Act in the Court of Judicial Magistrate, First Class, Akola being Summary Criminal Case No. 1428 of 2003. The Learned J.M.F.C. had issued process against the applicant and thereafter on 20/4/2006 as respondent No. 1 remained absent, the learned J.M.F.C. dismissed the complaint for default. Thereafter, the respondent filed application for restoration of the said case by setting aside 1108cwp363.09.odt 2/5 dismissal order dated 20/4/2006. That application was considered by the learned J.M.F.C. and he had by his order dated 15/6/2006 passed below Exh. 28 restored the said complaint to file and ordered that fresh summons be issued to the applicant-accused. Being aggrieved by this order the applicant filed Criminal Revision No. 243 of 2007 in the Sessions Court. The said revision was decided by the learned Additional Sessions Judge by order dated 17/3/2009 and the said revision filed by the applicant came to be dismissed. Against these two orders, the present petition is filed. 2. I have heard the learned Advocate for the petitioner. It is to be noted that the learned J.M.F.C. as well as the learned Additional Sessions Judge relied upon the judgment of the Supreme Court in the case of Mohd. Azeem vs. A. Vankatesh & another reported in 2003 ALL MR (Cri) 400 (SC). Both the Courts accepted the view of the Supreme Court that if a complaint is dismissed for default and the Court is satisfied that there is reasonable ground to restore it, the same can be restored. Both the Courts accepted the judgment of the Supreme Court and that is how the complaint came to be restored. 3. Before this Court, learned Advocate for the petitioner placed reliance on the judgment of the Supreme Court in the case of Adalat 1108cwp363.09.odt 3/5 Prasad vs. Rooplal Jindal & others – AIR 2004 SC 4674. According to the learned Advocate Mr. Gaikwad, the order passed by the learned J.M.F.C. restoring the complaint would amount to recalling issue or order reviewing the issue passed by him. According to him the course adopted by the learned Magistrate was illegal, and therefore, this Court should intervene and admit this petition. 4. Learned Advocate Mr. Gaikwad further relied upon judgment in the case of State of Kerala vs. M. M. Manikantan Nair reported in AIR 2001 SC 2145 in support of his contention that a Court who has delivered a judgment, cannot alter the same. For this submission, he had taken recourse of the provisions of Section 362 of Cri. P. C. In substance, the learned Advocate for the petitioner had submitted that once the original complaint was dismissed, certain prohibition accrued, and therefore, it was not open for the learned J.M.F.C. to reconsider the situation and restore the complaint and issue order to see that the petition is brought before the Court. 5. I have considered the point in question. I have also perused order dated 20/4/2006 dismissing the complaint, order dated 15/6/2006 restoring the complaint and order dated 17/3/2009 dismissing the revision. 1108cwp363.09.odt 4/5 6. Both the Courts below were impressed by the submission that the respondent was prompt in making application for restoration of the complaint which came to be dismissed on 20/4/2006. Both the Courts rightly felt bound by the observations of the Supreme Court in the case of Mohd. Azeem (supra). It is required to be mentioned that the facts in the present case as well as the facts in the case of Mohd. Azeem were practically similar in as much as for want of appearance on the part of complainant, the complaint came to be dismissed. The ratio of the judgment in the case of Mohd. Azeem would clearly goes to show that if the complaint is dismissed for no fault of the complainant, the Court entertaining the complaint has a discretion to restore the compliant if the said Court is satisfied that the interest of justice required that the restoration of the complaint is necessary. In my view, both the Courts have rightly followed the view expressed by the Supreme Court in the case of Mohd. Azeem. 7. The arguments advanced by the learned Advocate for the petitioner by taking help of the judgment in the case of Adalat Prasad is not accepted. In my view, the learned J.M.F.C. did not recall/review his order, but he considered the facts and circumstances and proceeded to restore the complaint. To that extent, the argument is required to be rejected. 1108cwp363.09.odt 5/5 8. The argument advanced by learned Advocate Mr. Gaikwad by placing reliance on the case of State of Kerala, mentioned earlier as well as by making review as per Section 362 Cri. P. C., is not acceptable because the learned J.M.F.C. has not altered his judgment as is understood within the meaning of Section 362 of the Criminal Procedure Code after the complaint came to be dismissed and an application for restoration was made and the said application came to be granted in view of the judgment of the Supreme Court in the case of Mohd. Azeem. 9. Looking to the peculiar facts and circumstances of the case and the judgment in the case of Mohd.Azeem, I am inclined to observe that no fault could be found in the impugned orders passed by the learned J.M.F.C. as well as the learned Additional Sessions Judge. The petition cannot be admitted, hence it is dismissed at the stage of admission. JUDGE wwl