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2009 DIGILAW 448 (HP)

Vijay Kant Sharma v. Shyam Lal Chauhan

2009-05-12

SURINDER SINGH

body2009
JUDGMENT : Surinder Singh, J. 1. The petitioner herein, was summoned as an accused on the complaint filed by the respondent under Section 138 of the Negotiable Instruments Act, for short “the Act”, after considering the preliminary evidence, by the learned trial court on 10.6.2008. 2. Neither the complainant nor the petitioner-accused was present as such the complaint was dismissed for want of prosecution. Thereafter an application was moved on 11.6.2008 for restoration of the complaint which was contested by the petitioner-accused on the ground that there was no provision for restoration. But the learned trial court vide order dated 13.10.2008 allowed the application and set aside the order dated 10.6.2008 regarding dismissal of the complaint. Consequently, the complaint was restored to its original position. 3. Petitioner-accused has assailed the impugned order by filing the present petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, on the ground that once the complaint is dismissed for default, it amounts to acquittal of the accused and the court has no jurisdiction or power to restore the complaint. Remedy which was available with the complainant was by filing the appeal against the acquittal. 4. I have heard learned counsel for the parties and have examined the record. 5. There is no dispute qua the facts as mentioned above. 6. It is a settled law that so far as the accused is concerned, the 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, the Magistrate cannot exercise any inherent jurisdiction to restore the case as held by the Supreme Court in Maj. Genl. A.S. Gauraya and another vs. S.N. Thakur and another AIR 1986 SC 1440 . 7. In the instant case, learned trial court while dismissing the complaint passed the following order:- “10.6.2008 Present:- None. Case called time and again but none is appeared on behalf complainant. The complaint is dismissed for want of prosecution. File after completion be consigned to Record Room. Announced in the open court. 10.6.2008 Sd/ Judicial Magistrate Ist Class-JMIC Nahan, District Sirmaur, H.P.” 8. Obviously, the order of the learned Magistrate did not say anything about the acquittal or discharge. Case called time and again but none is appeared on behalf complainant. The complaint is dismissed for want of prosecution. File after completion be consigned to Record Room. Announced in the open court. 10.6.2008 Sd/ Judicial Magistrate Ist Class-JMIC Nahan, District Sirmaur, H.P.” 8. Obviously, the order of the learned Magistrate did not say anything about the acquittal or discharge. But the dismissal of the complaint under Section 256 (1) of the Code has the effect of acquittal of the accused against which only the appeal lies. [Please see: H.P. Agro Industries Corporation Ltd. Vs. M.P.S. 1997 (2) Crimes 591, Raja vs. State of Maharashtra & another 1999 (3) Civil Court Cases 369 (Bombay) and Harish Chander vs. Kanti Lal Virchand Vora 1999 (1) Civil Court Cases 555 (Bombay)]. 9. Therefore, in the instant case, the only course open to the respondent was to prefer an appeal in the High Court, against such an order as per provision of Section 378 (5) of the Code of Criminal Procedure. 10. In result, the petition is allowed, consequently, the impugned order dated 10.6.2008 is hereby quashed and set aside. However, it will be open for the respondent to seek appropriate remedy subject to the period of limitation. 11. The petition stands disposed of.