Rajaram Nanda vs Vinay Ranjan Mishra

C.V. Sirpurkar, J—This criminal revision is directed against order dated 12.10.2006 passed by the Court of Judicial Magistrate, First Class, Mandla, in Criminal Case No. 772/2005, whereby the learned Magistrate had dismissed the application filed on behalf of revision petitioner/complainant for restoration of the private complaint which stood dismissed in default of appearance of the applicant and also for non-compliance with Court order to pay P.F., by order dated 22.07.2006. The facts giving rise to this criminal revision may briefly be stated thus:

The revision petitioner/complainant filed a private complaint in the Court of Judicial Magistrate First Class, Mandla under section 138 of the Negotiable Instruments Act, on account of dishonour of a cheque valued at Rs. 10,000/-. The complaint was registered and was pending for appearance of the accused/respondent. It was fixed on 13.04.2006 for appearance of the accused/respondent. Thereafter, a bailable warrant was directed to be issued on 7.7.2006 and the case was fixed for 22.07.2006. On that date, the complainant/revision petitioner failed to appear before the Court; therefore, the private complaint was dismissed in default of appearance of the complainant and for failure to pay process fee for issuance of process.

Subsequently, the complainant moved an application for restoration of the complaint on the ground that he had duly engaged a counsel to appear on his behalf in the private complaint. On 22.07.2006 the complainant fell ill and therefore neither his counsel nor he appeared in the Court. As a result, the private complaint was dismissed by the Court as aforesaid. The presence of the complainant on that date was not required. It was further submitted that since the complainant did not deliberately remain absent on 22.7.2006, the private complaint be restored to its original number.

After hearing arguments of the complainant/revision petitioner, placing reliance upon the case of Right Services Vs. Chhotu Bhaiya Road Lines and Another, (2004) CriLJ 406 : (2003) 3 MPHT 561 : (2003) 2 MPLJ 523 , the learned Magistrate dismissed the application by impugned order dated 12.10.2006,. It was held inter alia that restoration of a dismissed private complaint by the Magistrate would tantamount to review of order dated 22.07.2006, which is not permissible under the law.

The order dated 22.10.2006 has been assailed in this criminal revision on the grounds that dismissal of the private complaint for non-appearance of the complainant on just one date, was improper. Learned trial Court did not disbelieve the fact that the complainant was ill on the date on which he had failed to appear. It was further argued that on the aforesaid date, the case was fixed for appearance of the accused/respondent; as such, the personal appearance of the revision petitioner/complainant was not necessary.

In this regard, learned counsel for the revision petitioner has invited attention of the Court to various judgments of the Supreme Court and High Courts. Having heard the learned counsel for the revision petitioner, this Court is of the view that the revision petition is liable to be dismissed in limine for the reasons hereinafter stated:

To begin with, it has to be kept in mind that this criminal revision is not directed against the order dated 22.07.2006, dismissing the private complaint in default and for failure to pay process fee. It is directed against the order dated 12.10.2006, whereby learned Court below had refused to restore the private complaint which stood dismissed on 22.07.2006. Thus, the Court will have to confine itself to examining the legality, regularity and propriety of the order dated 12.10.2006, whereby the prayer for restoration of a private complaint was rejected. Whether dismissal of the private complaint on 22.07.2006 by learned Magistrate was justified or not, is not germane for the purpose of this criminal revision.

In this view of the matter, the judgment of the Supreme Court in the case of Mohd. Azeem Vs. A. Venkatesh and Another, (2002) 8 SCALE 331 : (2002) 7 SCC 726 whereby it was held that dismissal of a private complaint under section 138 of the Negotiable Instruments Act for one singular default of appearance was held to be improper, does not advance the cause of the revision petitioner. For the same reason, the authorities in the cases of Right Services Vs. Chhotu Bhaiya Road Lines and Another, (2004) CriLJ 406 : (2003) 3 MPHT 561 : (2003) 2 MPLJ 523 , Jai Kumar Jain vs. Vijay Prakash Vijaywargiya and another, 2006(II) MPWN 92 are not applicable in the case.

Learned Court below had dismissed the application for restoration mainly on the ground that such restoration would tantamount to a review of the order dismissing the complaint, which is not permissible under the law. Applying the principles laid down in the case of Bindeshwari Prasad Singh Vs. Kali Singh, AIR 1977 SC 2432 : (1978) CriLJ 187 : (1977) 1 SCC 57 : (1977) 1 SCR 125 , it has been held by the Apex Court in the case of Maj. Genl. A.S. Gauraya and Another Vs. S.N. Thakur and Another, AIR 1986 SC 1440 : (1986) CriLJ 1074 : (1986) 3 Crimes 1 : (1986) 1 SCALE 1128 : (1986) 2 SCC 709 : (1986) 2 SCR 771 : (1986) 1 UJ 654 , that so far as accused is concerned, the dismissal of a private complaint for non-appearance of the complainant and 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. The second complaint is permissible in law if it could be brought within the limits imposed by the Supreme Court in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 2 SCR 297 Supp . It was further observed that filing of second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The criminal procedure code does not contain any provision enabling the Criminal Court to exercise such an inherent power. The Supreme Court went on to observe that what Court has to see is not whether the Code contains any provision prohibiting a Magistrate from entertaining an application to restore a dismissed complaint but the task should be to find out whether the said Code contains any provision enabling the Magistrate to exercise an inherent jurisdiction which he otherwise does not have. Thus, it is abundantly clear that after having dismissed a private complaint in default presumably under section 256 of the Cr.P.C., the Magistrate has no jurisdiction to revisit the order and restore the same. In aforesaid circumstances, learned Magistrate committed no illegality, irregularity or impropriety in refusing to restore the private complaint.

In view of the aforesaid authoritative pronouncement of Apex Court on the point, the case of Murli Dhar vs. Bansram, 1965 MPLJ SN 76, does not appear to state the legal position correctly. Another authority to which the attention of this Court was invited on behalf of the revision petitioner is R.S. Sundara Raju vs. M/s. Tuimala Finance and Investments Kakinada, 1977 CR.L.J. 3597. This judgment is distinguishable on facts, as in that case the private complaint was dismissed in default of appearance, while in fact the complainant was present before the Magistrate.

On the basis of aforesaid discussion, this Court is of the view that the impugned order dated 12.10.2006 does not warrant any interference by this Court, under its revisional jurisdiction.

Consequently, this criminal revision is dismissed in limine.