Ram Bhaj Jain vs Brar Rice and General Mills

S.S. Nijjar, J.—In this petition u/s 482 Cr.P.C. of the Code of Criminal Procedure, the petitioner seeks the quashing of the complaint titled as M/s Brar Rice And General Mills v. Vardhman Overseas Ltd. u/s 138 of the Negotiable Instruments Act and the criminal proceedings pending in the Court of Judicial Magistrate 1st Class, Ferozepur (Annexure P-2), including the summoning order dated 24.5.1987 (Annexure P-3) and the order dated 7.2.1998 restoring the complaint earlier dismissed for non-prosecution on 10.9.1997(Annexure P-7).

The petitioner is a limited Company and is engaged in the business of procuring rice. Complainant, respondent No. 1 is the supplier of rice through respondent No. 2 who is described as partner/Manager of respondent No. 1 i.e. M/s Brar Rice and General Mills Mukstar Road, Guruharsahai, Distt. Ferozepor. It is averred that in the year 1996 respondents No. 1 and 2 supplied defective rice to the petitioner resulting in the rejection of the export order which had been placed with the petitioner. A business disputed arose between the parties. The petitioner issued a cheque on 15.8.1996 amounting to a sum of Rs. 5 lacs drawn on State Bank of India in favour of respondent No. 1. On presentation, the cheque was dishonoured. The respondents served the requisite notice on the petitioner u/s 138-B of the Negotiable Instruments Act. Since the payment was not made within 15 days, the respondents filed the complaint in the Court of Judicial Magistrate, 1st Class, Ferozepur. The Judicial Magistrate, 1st Class passed an order on 24.5.1997 summoning the petitioner.In the meantime, negotiations were going on between the parties and the entire dispute was settled. Respondent No. 2 executed an undertaking to have the complaint withdrawn by 10.9.19987. No one appeared in the Court: of Judicial Magistrate, 1st Class on behalf of the complainant on 10.9.1997 and the Court passed the following order:-

"Present: None.

Case has been called for several times but none has appeared on behalf of the complainant. It is already 2.40 P.M. As such the complaint is dismissed in default, File be consigned to the record room."

Announced Sd/- Judicial Magistrate Dated 10.9.1997 1st Class, Ferozepur.

Even after reaching the compromise and having the complaint dismissed in de fault, respondent filed an application for restoration of the complaint on 8.10.1997. On 7.2.1998, the Judicial Magistrate, Ist Class restored the complaint by passing the follow ing order :-

"Present: Sh. M.L.Chugh, Adv. counsel for the complainant.

Arguments on application heard. It is alleged that the complainant could not appear in the Court on 10.9.1997 as he was sick. He was confined to bed. There was no other male member for giving information to the Court. The absence of the complainant is not intentional. The application is supported by an affidavit. The counsel for the complainant has placed the reliance on Steel Strips Ltd. v. Bhagwati Steels 1997 (2) CCC 496, the said judgment has been passed on 1997(2) AICLR titled Shiv Kumar v. Mohd. Saghir. The ratio of both these judgments is fully applicable to the facts of the case in hand. The accused have already been summoned. The complainant had been appearing regularly. The application is hence allowed. Complaint is restored at its original number and stage. The accused be summoned now for 14,2.1998 on payment of process fee. The accused are residents of District Panipat. The complainant as such is directed to take the summon Dasti.

Dated 7.2.1998 Sd/- JMIC

I have heard the learned counsel for the parties at length and perused the paper book.

Mr. Narula submits that the Magistrate had no power under the Code of Criminal Procedure to restore the complaint which had earlier been dismissed for non-prosecution. He has submitted that the Magistrate has no inherent power to recall or review the order by which the complaint was dismissed in default. He further submitted that the continuance of the proceedings in the face of the compromise entered into between the parties would be an abuse of the process of Court, The proceedings continuing before the Court of Magistrate are, therefore, liable to be quashed. In support of his aforesaid submissions, leaned counsel for the petitioner has relied on various decisions of the Supreme Court and the High Court. He relied on the cases of Yash Pal Mittal Vs. State of Punjab, , Maj. Genl. A.S. Gauraya and Another Vs. S.N. Thakur and Another, , Narayandai Gulabchand Agrawal v. Rakesh Kumar Nem Kumar Porwal 1996 (3) R.C.R. 563, and Karandeep Singh v. Jagdish Goyal, 1997(4) R.C.R. (Criminal), 490.

In the case of Bindeshwari Prasad Singh (supra) it has been clearly held that there is absolutely no provision in the Code of Criminal Procedure of 1898 empowering a Magistrate to review or recall an order passed by him. Code of Criminal Procedure does contain a provision for inherent powers, namely, Section 561-A, which, however, confers these power''s on the High Court and the High Court alone." The aforesaid enunciation of law has been reiterated and approved by the Supreme Court in the case of Maj. Genl. A.S.Gauraya (supra). In this case, the Supreme Court observed as follows:-

"9. But the question remains whether a Magistrate can restore a complaint to his file by revoking his earlier order dismissing it for the non-appearance of the complainant and proceed with it when a, application is made by the complainant or revive it. A second compliant is permissible in law if it could be brought within the limitations imposed by this Court in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal P.C. does not contain any provision enabling the criminal Court to exercise such an inherent power."

In the case of Narayandas Gulabchand Agrawal (supra), the Bombay High Court, after noticing the aforesaid two judgments observed as follows:-

"5.... From the aforesaid judgment of the Apex Court no doubt is left and rather law has been settled that dismissal of complaint for non-appearance of the complainant in the warrant case would result in discharge and that would be final order and similarly the dismissal of the complaint for non-appearance of the complainant in the summons case would result in acquittal and the same would be final order and in the absence of any specific provision in the Code of Criminal Procedure, 1973, the Magistrate cannot revive the said order. That being the settled legal position, making of an application by the complainant on 21.9.1991 for restoration of the complaint was wholly misplaced and misconceived and therefore, cannot be said to be done in good faith and the order passed by the trial Court on that application restoring and reviving the complaint was also not only erroneous but without jurisdiction and further proceedings pursuant thereto were also nonest and void..."

I am of the opinion that the aforesaid observations of Lodha, J. are fully applicable to the facts and circumstances of this case. In Karandeep Singh''s case (supra) are noticing the aforesaid judgments of the Supreme Court, this Court observed as follows:-

"4. In the aforementioned case, the Apex Court has held that "once the complaint is dismissed for non-appearance of the complaint, 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."

The observations of the Supreme Court as well as of the High Courts extracted above leave no manner of doubt that the Magistrate has no jurisdiction to restore the complaint.

Surprisingly, the complaint had been directed to be restored without even issuing notice to the petitioner. The Magistrate, while reviewing the earlier order and restoring the complaint has relied on a judgment of the Delhi High Court in the case of Shiv Kumar v. Mohd. Saghir 1997(2) AICLR 314. A perusal of the aforesaid judgment, however, shows that it was not applicable to the facts and circumstances of the present case at all. Therein the complaint had been dismissed in default. No application for restoration of the complaint was filed by the complaint therein. The correct procedure was adopted and an appeal was filed. It was in these circumstances that the High Court had come to the conclusion that the Magistrate was not justified in dismissing the complaint for default as the complaint had been pending for nearly 4-1/2 years and the appellant throughout had been appearing regularly before the Magistrate prior to may 20, 1996 when the complaint was dismissed for default. It was observed by the Division Bench of the High Court that u/s 256 Cr.P.C. dismissal of a complaint for non-appearance is only one of the options available to the Magistrate. He has the discretion to adjourn the hearing of the case to some other date. He also has the discretion to dispense with the attendance of the complainant and proceed with the complaint. In view of the above, it was held that the Magistrate did not exercise the discretion judicially to advance the cause of justice. Summarily. In the case of Steel Strips Ltd. v. Bhagwati Steels. 1997(2) CCC 497, this Court was again dealing with a case where the Magistrate had dismissed the complaint and criminal revision had been filed in this Court challenging the order. In both the cases noted above, the Magistrate had not restored the complaint.

For the foregoing reasons, I am of the considered opinion that the order passed by the Magistrate on 7.2.1998 restoring the complaint is wholly without jurisdiction and deserves to be quashed.

In view of the above, this petition is allowed. The order dated 7.2.1998 and the further proceedings pending in the Court of the Judicial Magistrate First Class are hereby quashed. The respondents are at liberty to adopt any other legal proceedings which may be available to them.