Punjab-Haryana High Court
Surjit Kaur vs Tasveer Kaur And Another on 23 April, 2013
Author: Sabina
Bench: Sabina
Crl. Misc. No. M-21897 of 2012 (O&M) -1 -
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No. M-21897 of 2012 (O&M)
Date of Decision: 23.4.2013.
Surjit Kaur ........Petitioner
Vs.
Tasveer Kaur and another ......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Anupam Bhardwaj, Advocate
for the petitioner.
Mr. Vaibhav Narang, Advocate
for respondent No. 1.
Mr. Deep Singh, AAG, Punjab.
.....
SABINA, J.
Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 challenging the order dated 9.4.2012 (Annexure P-4) whereby order dated 23.10.2010 (Annexure P-3) was set aside. The complaint No. 989/20.10.2008 under Section 138 of the Negotiable Instruments Act, 1881 ('Act' for short) was restored vide order dated 23.10.2010 which was dismissed in default by the Trial Court vide order dated 6.8.2009 (Annexure P-2).
Learned counsel for the petitioner has submitted that petitioner had filed a complaint under Section 138 of the Act against respondent No. 1 with regard to dishonour of cheque dated 4.6.2008. Due to inadvertence, petitioner could not appear before the Trial Court on 6.8.2009 and consequently, the complaint was ordered to be dismissed in default. Petitioner Crl. Misc. No. M-21897 of 2012 (O&M) -2 - moved an application for restoration of the complaint and the same was allowed by the Trial Court vide order dated 23.10.2010 Annexure P-3. The said order was challenged by respondent No. 1 by way of revision and the Court of Revision vide impugned order dated 9.4.2012 Annexure P-4 allowed the revision petition and set aside the order dated 23.10.2010. Learned counsel has further submitted that the Court of Revision had erred in allowing the revision petition as the complaint was at the initial stage of summoning respondent No. 1 and the Trial Court had rightly restored the complaint. In support of his arguments, learned counsel has placed reliance on 'Nambhi Raj versus Adarsh Diwan, 2004(1) R.C.R (Criminal) 978', wherein it was held as under:-
"After hearing the learned counsel and perusing the aforementioned judgments, I am of the considered view that the order dated 13.11.2000 passed by the Magistrate restoring the complaint has been upheld by the Additional Sessions Judge and it shall now be deemed that the order dismissing the complaint passed on 4.10.2000 has been set aside by the Additional Sessions Judge. Therefore, it would be extreme technicality that no revision was filed by the complainant and the Magistrate has no jurisdiction to restore the complaint. Moreover, the second revision by the petitioner would not be competent by invoking Section 482, Cr.P.C. Therefore, there is no ground to interfere and the petition is liable to be dismissed." Crl. Misc. No. M-21897 of 2012 (O&M) -3 -
Learned counsel for respondent No. 1, on the other hand, has submitted that the Magistrate had no power to recall his own order and has placed reliance on the decision of this Court in 'Daya Kishan and another versus Banarsi Dass, 2010(2) R.C.R (Criminal) 451', wherein it was held as under:-
"In the light of the above two judgments of the Hon'ble Supreme Court wherein the Hon'ble Supreme Court has held that the order passed by the Magistrate dismissing the complaint cannot be reviewed or recalled, the order dated 13.12.2004 (Annexure P-2) passed by the learned Additional Chief Judicial Magistrate, Ludhiana, cannot be sustained and deserves to be set aside. The judgments relied upon by the counsel for the respondent in the light of the judgments of the Hon'ble Supreme Court referred to and relied upon above, will be of no help to the respondent.
Learned counsel has further placed reliance on 'Shri Gobind Kumar versus Krishan Lal Chakrawarti and others, 2003(3) AICLR 779', wherein it was held as under:-
"A perusal of the aforesaid authorities shows that once a case is dismissed for want of prosecution, then a Magistrate has no inherent power to review his order of dismissal and restore the case. A second complaint is permissible if it is within limitation. However, as far as the first complaint is concerned, the Magistrate has no power for restoration and the only remedy available to the complainant is to file a revision petition. In the present case, the recalling of the order by the Sub Crl. Misc. No. M-21897 of 2012 (O&M) -4 - Divisional Magistrate was clearly beyond jurisdiction."
In the present case, petitioner had filed a complaint under Section 138 of the Act against respondent No. 1 with regard to dishonour of cheque dated 4.6.2008 in the sum of ` 30,000/-. Petitioner led her preliminary evidence in support of her case and thereafter, respondent No. 1 was ordered to be summoned to face the trial. The complaint was ordered to be dismissed in default vide order dated 6.8.2009 Annexure P-2. Petitioner moved an application before the Trial Court for restoration of the case as she or her counsel could not appear before the Trial Court on account of some confusion with regard to actual date of hearing of the case. On coming to know about the mistake with regard to date fixed in the case, an application was immediately moved for restoration of the complaint. Since the complaint was at the initial stage of summoning of respondent No. 1, the Magistrate ordered the restoration of the complaint vide order dated 23.10.2010 Annexure P-3. The Court of Revision set aside the order dated 23.10.2010, passed by the Trial Court, vide impugned order dated 9.4.2012 Annexure P-4 on the ground that the Magistrate had no power to restore the complaint. There is no quarrel with the proposition of law that the Magistrate has no power to recall its order. In fact, the petitioner should have resorted to the remedy of revision seeking quashing of the order whereby the complaint was ordered to be dismissed in default. The Court of Revision while deciding the revision petition could have gone into the merits of the case to see as to whether the complaint was required to be restored or not. The endeavour of the Court has to be to impart justice to Crl. Misc. No. M-21897 of 2012 (O&M) -5 - the parties. By setting aside the order of restoration of the complaint, the Court of Revision has overlooked this important aspect of the matter. The Court of Revision in its revisional jurisdiction could have itself gone into the matter as to whether the complaint required to be restored or not. The case could have been remanded back to the Court of Revision to decide the same afresh, in accordance with law but that would again result in delay of the decision of the case. In these circumstances, it would be just and expedient for this Court to look into the matter and examine as to whether the complaint was liable to be restored or not.
In the present case, respondent No. 1 had been ordered to be summoned to face the trial qua commission of offence punishable under Section 138 of the Act. The case of the petitioner is that she or her counsel could not appear before the Trial Court on 6.8.2009 as there was some confusion qua the date of hearing of the case. Complainant has filed the complaint qua dishonour of cheque in the sum of Rs. 30,000/-. Complainant had nothing to gain by not appearing before the Court on the date fixed. In these circumstances, the absence of the complainant before the Trial Court on 6.8.2009 cannot be said to be deliberate or intentional. Although, a perusal of the order dated 6.8.2009 reveals that the notice sent to respondent No. 1 had been received back with the report that she could not be served for want of due address but the address of respondent No. 1 in the complaint is the same as mentioned in the present petition. Respondent No. 1 has been duly served on the said address when notice was issued by this Court. In case the Crl. Misc. No. M-21897 of 2012 (O&M) -6 - complaint is restored, the lis between the parties will be disposed of on merits. Respondent No. 1 would be at liberty to take up all the pleas available to her during trial. Keeping in view the larger interest of justice in mind, it would be just and expedient to set aside the impugned order dated 9.4.2012. Since the operation of the impugned order was stayed by this Court, the proceedings before the Trial Court are going on. Hence, at this stage, it would not be just and expedient to stall the said proceedings on mere technicalities.
Accordingly, this petition is allowed. Impugned order dated 9.4.2012 Annexure P-4 is set aside.
(SABINA) JUDGE April 23, 2013 Gurpreet