Anil Bassi vs Vishnu Dass

R.L. Anand, J.—The learned counsel for the petitioner relies upon Ajay Khurana V. M/s Anil Cloth House and another. 1998(3) RCR (Crl.) 232:1998(2) RCC 623. whereas the learned counsel for the respondent relies upon Major General A.S.Gauraya and another V. S.N.Thakur and another. 1998(1) RCR 3. The submission of the learned counsel for the respondent is that once a complaint has been dismissed for want of prosecution, the Magistrate has no right to restore the complaint and the order of the Magistrate in rejecting the application of the petitioner for the restoration of the complaint is totally justified. The citation which has been relied upon by the learned counsel for the respondent is distinguishable on facts. The Hon''ble Supreme Court was considering an issue whether the Magistrate has inherent power to pass an order for the restoration of a complaint and in that light the dictum of the Hon''ble Supreme Court was in the negative. So far as the citation which has been relied upon by the counsel for the petitioner is concerned, it has applicability to the facts in hand as the Magistrate dismissed the complaint u/s 138 of the Negotiable Instruments Act of the petitioner at the early hours even against the directions of the High Court Rules and Orders. He ought to have waited for the complainant. The preliminary evidence had already been recorded by the learned Magistrate and in these circumstances the only option left with the Magistrate was either to dismiss the complaint on merit or to summon the accused u/s 204 Cr.P.C. The observations of her Lordship are contained in para Nos. 1 and 3 of the judgment relied upon by the counsel for the petitioner which read as under:

"Complainant-petitioner field the complaint u/s 138 rend with Sections 141 and 142 of the Negotiable Instruments Act. 1881. On 28.3.1997 preliminary evidence of the compliant was recorded by the trial Court and the case was adjourned to 29.7.1997 for arguments with regard to summoning of the accused. On this date, as the complainant did not appear before the trial Magistrate till 9.20 a.m., his complaint as dismissed vide order dated 29.7.1997. Petitioner''s learned counsel relying on Kuldip Singh V. Harnam Singh and another, 1982 Criminal Law Times 289, contends that in such circumstances the learned Magistrate had no jurisdiction to dismiss the complaint; he ought to have considered the evidence and should have passed the necessary order to summon the accused or could have dismissed the complaint on merits.

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Petitioner-compliant has filed copy of the second order dated 29.7.1997 passed by the learned trial Magistrate, even if he has not challenged that order in this revision, he can still challenge the fist order passed by the trial Magistrate on 29.7.1997 dismissing his complaint for his non-appearance. The learned Magistrate after recording the complainant''s preliminary evidence ought to have considered the evidence and should have passed the necessary order either summoning the accused or dismissing the complaint on merits, but he chose to dismiss the complaint in default for non appearance of the complainant. But from the other order passed on 27.9.1997 itself it is evident that at 11.30 a.m. on that very date, the complainant appeared before the Court, filed an application to restore his complaint, but that too was dismissed. It further reveals that the petitioner-complainant''s complaint was dismissed in the early part of the day as during those days, the Court hours were from 7.00 a.m. to 1.00 p.m."

In this view of the matter, the present revision succeeds. The orders of the learned Magistrate dismissing the complaint as well as the application for restoration of the complaint are set aside and the Magistrate is directed to proceed further and pass a legal order thereon after giving a right of hearing to the lawyer of the petitioner. The revision stands allowed.

The petitioner shall appear before the learned Magistrate on 23.12.1998.