Crl.Revision No. 1412 of 2006 -1- In the High Court of Punjab and Haryana at Chandigarh Crl.Revision No. 1412 of 2006 Date of Decision:May 14, 2009 Karam Singh ---Petitioner versus Krishan Kumar ---Respondent Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Ms. Ravinder Kaur,Advocate, for the petitioner Mr.N.K.Sanghi and Mr. Munish Garg, Advocates, for the respondent. *** SABINA, J. Karam Singh-petitioner has filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent. The case of the complainant/petitioner was that on 1.4.2004, respondent had taken a loan of Rs. 80,000/- from him. In order to discharge the said liability, respondent issued a cheque of Rs. 80,000/- dated 5.5.2004 in favour of the petitioner. When the said cheque was presented for encashment, the same bounced. Hence, the compliant in question was filed. On the basis of the preliminary evidence led by the petitioner, Crl.Revision No. 1412 of 2006 -2- respondent was summoned to face trial vide order dated 24.8.2004 by Judicial Magistrate Ist Class, Sirsa. Respondent appeared before the court in pursuance of the summoning order. On 1.3.2005, the case was listed for consideration on notice of accusation. Petitioner or his counsel, however, failed to appear and the following order was passed:- “Case called several times since morning. It is 3.30 p.m., but none has come present on behalf of the complainant despite repeated calls. No further wait is justified. Therefore, present complaint is hereby dismissed for want of prosecution. The accused stands discharged. His bail bond and surety bond also stand discharged. File be completed and consigned to the record room.” Petitioner moved an application for restoration of the complaint. The said application was dismissed vide impugned order Annexure P-3 dated 17.4.2006 passed by Judicial Magistrate Ist Class, Sirsa. Aggrieved by the said order, petitioner has filed the present revision petition. Learned counsel for the petitioner has submitted that it is a case of great hardship. Petitioner had given a loan of Rs. 80,000/- to the respondent. However, cheque issued by the respondent with regard to repayment of the said loan amount had bounced. Petitioner had been appearing on all dates before the trial court. On 1.3.2005, petitioner or his counsel had not appeared as they had noted down a wrong date. The absence of the petitioner or his counsel was not intentional. Learned counsel for the respondent has submitted that by way of present revision petitioner, petitioner has challenged the order Annexure Crl.Revision No. 1412 of 2006 -3- P-3 whereby application for restoration of the complaint was dismissed. Order of dismissal of complaint passed by the Magistrate on account of non-appearance of the complainant was a final order and Magistrate had no inherent power to restore the case, In support of his arguments learned counsel has placed reliance on the decision of Apex Court in the case of Major General A.S.Gauraya and another vs. S.N.Thakur and another 1988(1)RCR 3. Paras 9 and 10 of the decision of the Apex Court in the case of Major General A.S.Gauraya and another (Supra) are reproduced hereunder:- “9. Section 249 of the Criminal P.C. enables a Magistrate to discharge the accused when the complainant is absent and when the conditions laid down in the said section are satisfied. S. 256(1) of the Criminal P.C. enables a Magistrate to acquit the accused if the complainant does not appear. Thus, the order of dismissal of a complaint by a criminal Court due to the absence of a complainant is a proper order. But the question remains whether a Magistrate can restore a complaint to his file by revoking his earlier order dismissing it for the non- appearance of the complainant and proceed with it when an application is made by the complainant to revive it. A second complaint is permissible in law if it could be brought within the limitations imposed by this Court in Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar, 1962 Supp. (2) SCR 297: (AIR 1962 SC 876) filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the Crl.Revision No. 1412 of 2006 -4- earlier order of dismissal. The Criminal P.C.does not contain any provision enabling the criminal Court to exercise such an inherent power. 10. In D.B.Sethi v. V.P.Dewan (1971) 7 Delhi LT 162, a Division Bench of the Delhi High Court held that a Magistrate could revive a dismissed complaint since the order dismissing the complaint was not a judgment or a final order. In para 9, the Court observes as follows: “9 As long as the order of the Magistrate does not amount to a judgment or final order there is nothing in the Criminal P.C. prohibiting the Magistrate from entertaining a fresh application asking for the same relief on the same facts or from reconsidering that order. During the course of the proceedings, a Magistrate has to pass various interlocutory orders and it will not be correct to say that he has no jurisdiction to reconsider them........” We would like to point out that this approach is wrong. What the Court has to see is not whether the Code of Criminal Procedure 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. It was relying upon this decision that the Delhi High Court in this case directed the Magistrate to recall the order of dismissal Crl.Revision No. 1412 of 2006 -5- of the complaint. The Delhi High Court referred to various decisions dealing with S. 367 (old Code) of the Criminal Procedure Code as to what should be the contents of a judgment. In out view the entire discussion is misplaced. So far as the accused 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.” The case before the trial court on 1.3.2005 was listed for consideration of notice of accusation. On the said date, the presence of the complainant was, thus, necessary. Since the complainant or his counsel did not appear, learned Magistrate was left with no other alternative but to dismiss the complaint and consequently respondent was discharged. Learned Magistrate had no power to restore the complaint as the order of dismissal of complaint for non-appearance of the petitioner was a final order. Hence, in the facts and circumstances no interference is called. Accordingly, this revision petition is dismissed. (SABINA) JUDGE May 14, 2009 PARAMJIT