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2003 SCC OnLine P&H 1450 : (2004) 1 RCR (Cri) 978 : 2004 Cri
LJ (NOC 105) 33 : (2004) 2 BC 354
In the High Court of Punjab and Haryana
(BEFORE M.M. KUMAR, J.)
Nambhi Raj … Petitioner;
Versus
Adarsh Diwan … Respondent.
Cr. Misc. No. 50872-M of 2003
Decided on November 17, 2003
The Judgment of the Court was delivered by
M.M. KUMAR, J.:— This petition filed under Section 482 of the Code
of Criminal Procedure, 1973 (for brevity, ‘Cr.P.C’.) prays for quashing
order dated 13.11.2000 passed by Judicial Magistrate 1st Class,
Gurgaon restoring the complaint of the respondent to its original
number and the order dated 24.9.2000 passed by the Additional
Sessions Judge upholding the aforesaid order of restoration of the
Magistrate.
2. The complainant-respondent filed a complaint under Section
138/142 of the Negotiable Instruments Act, 1881 and on account of
non-appearance of the complainant, the complaint was dismissed on
4.10.2000. When the complainant filed an application for restoration of
the complaint, the Magistrate accepted the application by relying upon
a judgment of the Supreme Court in the case of Associated Cement Co.
Ltd. v. Keshavanand, 1999 ISJ (Banking) 171 : 1998 (1) RCR (Cr.) 309
(SC) on the ground that the complaint was at the initial stage of
summoning the accused-petitioner and the date was fixed for taking
further steps towards progress of the complaint. It was further held
that the Magistrate was competent to issue process for the purposes of
securing the presence of the accused-petitioner. Against the
aforementioned order, the accused-petitioner filed Criminal Revision
No. 10 of 17.1.2001 and the order passed by the Magistrate was
upheld. The operative part of the order dated 24.9.2002 reads as
under:—
“Perusal of trial court record reveals that the case was at the stage
of securing presence of petitioner-accused when the complaint
was dismissed in default. The learned trial court had restored
the complaint on the basis of law laid down by Hon'ble Supreme
Court in Associated Cement Co. Ltd. v. Keshavanand, 1999 ISJ
(Banking) 171 : 1998 (1) RCR (Crl.) 309 (SC). After hearing
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the counsel for the parties, the court do not find any infirmity
with the impugned order. It was ruled in the cited ruling that if
the presence of complainant on a particular day is unnecessary,
then the court would not be justified in dismissing his complaint
and that resorting to the step of axing down the complaint will
not be a proper exercise of the power vested with the
Magistrate. The dismissal order passed by learned trial court on
4.10.2000 was obviously unwarranted because the presence of
complainant on the date of default was unnecessary for taking
further steps towards progress of the complaint inasmuch as
the court, inspite of complainant's absence, was competent to
issue the process that was required for the purpose of securing
accused's presence. Viewed in this perspective, the dismissal of
complaint was improper and its restoration, in the light of cited
ruling, is perfectly justified. No case is, therefore, made out to
interfere with the impugned order.
Resultantly, the revision petition is dismissed. The parties are
directed to appear before learned trial court on 1.10.2002. Trial
court record alongwith copy of judgment be sent back. Revision
file be consigned to record room.”
3. Mr. B.S. Rana, learned counsel for the petitioner has argued that
the Magistrate did not enjoy inherent power to restore the complaint. In
supportof his submission the learned
Page: 979
counsel has placed reliance on a judgment of the Supreme Court in the
case of Major General A.S. Gauraya and anr. v. S.N. Thakur and anr.,
1988 (1) Recent Criminal Reports 3 and a judgment of this Court in the
case of Karandeep Singh v. Jagdish Goyal, 1997 (4) RCR (Criminal)
Reports 490 and argued that the order of dismissal of the complaint
passed by the Magistrate on account of non-appearance was the final
order and on revision having been filed against the aforementioned
order by the complainant it was liable to be maintained and the
Magistrate did not have inherent jurisdiction.
4. After hearing the learned counsel and perusing the
aforementioned judgments, J am of the considered view that the order
dated 13.11.2000 passed by the Magistrate restoring the complaint has
been upheld by the Additional Sessions Judge and it shall now be
deemed that the order dismissing the complaint passed on 4.10.2000
has been set aside by the Additional Sessions Judge. Therefore, it
would be extreme technicality that no revision was filed by the
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complainant and the Magistrate has no jurisdiction to restore the
complaint. Moreover, the second revision by the petitioner would not be
competent by invoking Section 482 Cr.RC. Therefore, there is no
ground to interfere and the petitioner is liable to be dismissed.
5. For the reasons recorded above, this petition fails and the same is
dismissed.
Petition dismissed.
———
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