Punjab-Haryana High Court
Chetan Juneja vs Naveen Gupta on 11 November, 2013
Author: Rekha Mittal
Bench: Rekha Mittal
CRM M 25385 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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Date of decision: 11.11.2013
1. CRM M 25385 of 2012
Chetan Juneja ........ Petitioner
Versus
Naveen Gupta .......Respondent
2. CRM M 25386 of 2012
Chetan Juneja .........Petitioner
Versus
Naveen Gupta .........Respondent
Coram: Hon'ble Mrs. Justice Rekha Mittal
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Present: Mr. Vaibhav Sehgal, Advocate
for the petitioner
None for the respondent
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1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Rekha Mittal, J.
By way of this order, I shall dispose of CRM M 25385 and 25386 of 2012 as they involve common questions of fact and law.
Naveen Gupta son of Krishan Kumar Gupta, proprietor of M/s Gupta Electronics, filed two complaints under section 138 of the Negotiable Instruments Act, 1881 (in short, 'the Act') on the allegations that two cheques issued by the accused (petitioner herein) in discharge of his legal liability got dishonoured on their presentation to the Bank and drawer of the cheques failed to make payment, despite receipt of notice. Bimbra Mohan Lal 2013.11.18 17:22
The complaints were dismissed by the trial Court for want of I attest to the accuracy and integrity of this document Chandigarh CRM M 25385 of 2012 2 appearance of the respondent. The respondent submitted application for restoration of complaint which was also dismissed for want of prosecution. Another application was submitted for restoration of the application and the learned Magistrate, vide impugned order, restored the complaint while relying upon judgment of this Court in Nambhi Raj v. Adarsh Diwan 2004 (1) R.C.R. (Criminal) 978.
Counsel for the petitioner would contend that once the Magistrate dismissed the complaint in default, he has no power under the provisions of the Code of Criminal Procedure or otherwise to review order of dismissal and restore the case. In support of his contention, he has placed reliance upon judgment of Hon'ble the Supreme Court of India in Maj. Genl. A S Gauraya and another v. S N Thakur and another, AIR 1986 Supreme Court 1440. He has also referred to judgments of this Court in Daya Kishan and another v. Banarsi Dass, 2010(2) RCR (Criminal) 451 and Jitender Bajaj v. State (U.T. Chandigarh) and others, 2005 (3) RCR (Criminal) 69. It is further argued that the judgment relied upon by the learned Court in Nambhi Raj's case (supra) has got no bearing on the case in hand because in that case, order passed by the Magistrate, restoring the complaint, has been upheld by the Additional Sessions Judge and this Court held that it shall now be deemed that the order dismissing the complaint passed on 04.10.2000 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. According to counsel, the judgment passed by Hon'ble the Supreme Court in The Associated Cement Co. Limited v. Keshvanand, 1998(1) RCR (Criminal) 309 does not deal with the question of jurisdiction of the Bimbra Mohan Lal 2013.11.18 17:22 I attest to the accuracy and integrity of this document Chandigarh CRM M 25385 of 2012 3 Magistrate to restore a complaint dismissed in default.
The respondent, at one point of time, was represented by Mr. Kartik Gupta, Advocate, but today nobody has appeared on behalf of the respondent to counter the case of the petitioner.
I have heard counsel for the petitioner and perused the case file. A perusal of the impugned order would reveal that the complaint under section 138 of the Act was dismissed in default for want of prosecution. The application filed by the complaintant for restoration of complaint was also dismissed for non-appearance of the complainant or his counsel. The learned trial Court, while disposing of the application for restoration of application for restoration of the complaint, passed the order impugned, restoring the complaint while relying upon judgment of this Court in Nambhi Raj's case (supra). In Nambhi Raj's case (supra), judgment passed by Hon'ble the Supreme Court of India in Maj. Genl. A S Gauraya's case (supra) was brought to the notice of the Court, however, the Court in view of the facts and circumstances of that case held that the order passed by the Additional Sessions Judge, affirming the order passed by the Magistrate, restoring the complaint, is deemed to have been passed by the revisional/appellate Court. In the instant case, the order passed by the Magistrate has been challenged before this Court. Keeping in view the enunciation of law laid down by Hon'ble the Supreme Court of India in Maj. Genl. A S Gauraya's case (supra), I am of the considered opinion that a Magistrate cannot exercise any inherent jurisdiction to restore the complaint dismissed in default.
In Daya Kishan's case (supra) this Court, while relying upon the decision in Maj. Genl. A S Gauraya has held that there is no provision Bimbra Mohan Lal 2013.11.18 17:22 I attest to the accuracy and integrity of this document Chandigarh CRM M 25385 of 2012 4 under the Code, which empowers the Magistrate to recall or review his order once passed by him, except in cases where these are interim in nature.
In the case in hand, initially the complaint was dismissed for want of prosecution and thereafter, even the application for restoration of application for restoration of the complaint was dismissed for non- appearance of the complainant. In the absence of any power with the Magistrate to recall/review its order, the Magistrate has committed a serious error and illegality in restoring the complaint dismissed for want of prosecution. It is an entirely different matter that the Hon'ble Supreme Court in The Associated Cement Co. Ltd.'s case (supra) has discouraged the Courts from dismissing the complaint due to absence of the complainant without applying its mind if presence of the complainant was necessary.
In view of what has been discussed hereinabove, the petition is allowed. The impugned order is set aside, leaving the parties to bear their own costs. However, the respondent will be at liberty to have recourse to appropriate proceedings in accordance with law, to challenge order of dismissal of the complaint in default.
Photocopy of the order be placed on the connected file.
(Rekha Mittal) Judge 11.11.2013 mohan Bimbra Mohan Lal 2013.11.18 17:22 I attest to the accuracy and integrity of this document Chandigarh