1998 ALL MR (Cri) 1138
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

VISHNU SAHAI, J.

Harishchandra @ Sunil Rajaram Rasker Vs. Kantilal Virchand Vora & Anr.

Criminal Writ Petition No. 920 of 1995

17th July, 1998

Petitioner Counsel: Mr. S. V. MARWADI, Mr. MUNDERGI
Respondent Counsel: Mr. P. R. SINGAL

Criminal P.C. (1973), Ss. 249, 256 - Complaint case - Complaint filed under S. 138 of Negotiable Instruments Act - Complaint dismissed on account of absence of complainant - After some time complainant appearing before court - Court cannot recall its order.

AIR 1986 SC 1440 Foll. (Para 3)

Cases Cited:
AIR 1986 SC 1440 [Para 2,3]


JUDGMENT

JUDGMENT :- Heard Mr. S.V. Marwadi holding for Mr. Mundergi for the petitioner and Mr. P. R. Singal APP for respondent no.2. Respondent no.1 though served has not engaged any counsel.

2. The legal contention raised by Mr. Marwadi in this petition, under Article 227 of the Constitution of India and section 482 of the Criminal Procedure Code is that once in a complaint case, the Magistrate dismisses the complaint for default, he cannot restore the same and the only remedy open to the complainant is to file a second complaint.

To substantiate his submission Mr. Marwadi placed reliance on the observations contained in paragraphs 9 and 10 of the decision of the Apex Court rendered in the case of Maj. Genl. A.S. Gaurya and anr. Vs. S.N. Thakur and anr. reported in AIR 1986 SC 1440. I have perused the said decision and find that the proposition canvassed by Mr. Marwadi has been laid down in it.

3. In the instant case the complainant (respondent no.1), filed a complaint against the petitioner under section 138 of the negotiable Instruments Act, on 6-11-1990. On 15-6-1993 on account of absence of complainant the learned magistrate dismissed the complaint but after some time, the same day, when the complainant appeared, he recalled his order. In my judgment, in view of the ratio contained in AIR 1986 SC 1440 (supra), the learned Magistrate could not have recalled his order. Consequently I allow this petition and quash the order dated 15-6-1993 passed by the learned Magistrate restoring the complaint.

Rule is made absolute in the said terms.

Petition allowed.