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Karandeep Singh vs Jagdish Goyal

Punjab And Haryana At Chandigarh · Decided on 7 May 1997 · Citation: (1998) 3 Crimes 153 : (1984) 3 DCR 351 : (1998) ISJ 171 : (1997) 4 RCR(Criminal) 490

HON’BLE JUDGES
Sarojnei Saksena, J
CASE NUMBER
Criminal Miscellaneous No. 3461-M of 1993
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Judgment

6 paragraphs · 339 words

Dr. (Mrs.) Sarojnei Saksena, J.

1.

Petitioner''s only contention is that respondent filed the compliant under Section 138 of the Negotiable Instruments Act against him before the lower Court, which was taken up before it on 12.6.1992 and on 15.7.1992, but on both these dates, the complainant did not appear. On 15.7.1992 the complaint was dismissed in default for want of prosecution, but later on the respondent filed a petition for restoration of the complaint alleging that the case was listed for 12.6.1992 and on that very date, the complainant and his counsel noted the next date as 13.8.1992. Hence, on this date, he filed a petition for restoration of his complaint on the said ground.

2.

The learned Magistrate passed the impugned order, Annexure P2, wherein it has been mentioned that the case was adjourned to 13.8.1992, but inadvertently the case was fixed for 15.7.1992. On 15.7.1992 the complainant could not appear as he had noted the date 13.8.1992; therefore, for the fault of the court, the complainant cannot be allowed to suffer; hence, the complaint was restored on 9.9.1992.

3.

Relying on Major General A.S. Gauraya and another v. S.N. Thakur and another, 1988(1) R.C.R. (SC) 3, petitioner''s learned counsel contended that once the complaint was dismissed in default for want of prosecution, the Magistrate had no jurisdiction to restore it under any of the provisions of the Code of Criminal Procedure.

4.

In the aforementioned case, the Apex Court has held that "once the complaint is dismissed for nonappearance of the complainant, it is a final order; the Magistrate has no inherent power to restore the case." The Apex Court has further held that "this law laid down under Article 141 of the Constitution of India shall be applicable to pendente proceedings with retrospective effect as well."

5.

In view of this judgment of the Apex Court, the petition is allowed. The order, Annexure P2, is set aside. If the respondent wishes to file revision/appeal against the impugned order, he is at liberty to do so.