Mohammad Ilyas Ahamed vs Abdul Subhan

K. Sreedhar Rao, J.—These criminal petitions are filed u/s 482, Cr.P.C. challenging the order of the Addl. Sessions Judge, Shimoga. The petitioner filed the complaints u/s 138 of Negotiable Instruments Act against the respondent who is common in both the cases. On 24.11.1999 the complaints filed by the petitioner came to be dismissed for default. However, the proceedings of the order sheet discloses that immediately after the dismissal, the Counsel appearing for the petitioner appeared requesting the Court for recall of the dismissal order and exempting the complainant''s presence. The Court allowed the request and immediately by recalling the order adjourned the matter to 12.1.2000. The said order came to be challenged in the Criminal Petition Nos. 241/99 and 243/99. The learned Sessions Judge allowed the revision and set aside the order of restoration dated 24.11.1999. Being aggrieved, the complainant has filed the present petition.

The complainant and respondents are common in both the cases but in respect of different transactions two cheques came to be issued. Therefore, two separate complaints have been filed. The material facts and the question of law in both the cases being the same, hence both the petitions taken up together for passing common order.

After hearing the Counsel for the petitioner and the respondent, I find that technically, there does not appear to be any illegality in the order of the Sessions Judge. When the complaint is once dismissed fur default, the Magistrate becomes functus officio and he has no inherent power to restore the complaint dismissed for default, In that view, the order of the Magistrate is not visited with illegality, Therefore, the learned Sessions Judge rightly set aside the order. However, u/s 482, Cr.P.C. the Court is not merely guided by the technicalities, in order to achieve the ends of justice. The Court has discretionary power to enquire into the facts and by any valid excusable reason the petitioner''s absence is explained on equitable considerations, relief u/s 482, Cr.P.C. can be granted. It is evident from the facts that the complainant was absent, it is explained that the complainant had gone abroad, he had instructed his Counsel who also appears to be diligent in conducting the prosecution, although he was not present at the time when the case was called. But, however, immediately after the dismissal order is passed Counsel made his appearance and made request to the Court. The prosecution of a private complaint for an offence u/s 138 of Negotiable Instruments Act, largely differs from the prosecution of a private complaint in respect of other IPC offences. For an offence u/s 138 of Negotiable Instruments Act, there is no remedy available for the complainant to file a second complaint when dismissed for default in view of the limitations prescribed. Therefore, in order to secure the ends of justice, pass the following :

ORDER

The complaints are directed to be restored to its file and the Magistrate is directed to proceed with the trial of the case in accordance with law.