Punjab-Haryana High Court
Krishan Lal vs Sangeeta Aggarwal on 6 May, 2009
Author: Rajive Bhalla
Bench: Rajive Bhalla
Crl.Misc.No.M-79076 of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl.Misc.No.M-79076 of 2006
Date of Decision: 6.5.2009
Krishan Lal .....Petitioner
Vs.
Sangeeta Aggarwal ....Respondent
....
CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA
****
Present : Mr.Sanjiv Gupta, Advocate for the petitioner.
Mr. Akshay Jain, Advocate for the respondent.
....
RAJIVE BHALLA, J
The petitioner prays for quashing of the complaint, the summoning order dated 26.7.2005 and the order 23.10.2006, whereby the complaint, which was dismissed for non prosecution has been restored.
Before proceeding to adjudicate the present controversy, it would be appropriate to mention here that arguments have been addressed as to the legality of the order dated 23.10.2006, whereby the complaint, which was dismissed for non prosecution, has been ordered to be restored.
The respondent filed a complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as `the Act'). On 16.12.2005, the complaint was dismissed in default. However, on an application filed by the respondent, the complaint was restored vide order dated 23.10.2006.
Counsel for the petitioner submits that once dismissed in default, a criminal complaint cannot be restored, as the Code does not Crl.Misc.No.M-79076 of 2006 2 confer the power to recall or review an order, except to the extent of correcting clerical and/or arithmetical errors. It is submitted that as the Chief Judicial Magistrate had no jurisdiction to recall the order dated 16.12.2005, the petition be allowed and the impugned order be set aside.
Counsel for the respondent, however, submits that as the complaint was pending for summoning of the petitioner, the learned Magistrate did not commit any error in recalling the order and restoring the complaint which was dismissed in default.
I have heard learned counsel for the parties and perused the order dated 23.10.2006, whereby the Chief Judicial Magistrate recalled his order dated 16.12.2005 and restored the complaint to its original stage. The Code of Criminal Procedure does not confer any power to review/recall an order. The only situation, in which a court may legitimately alter its order is, where it proposes to correct clerical and/or arithmetical errors. A complaint, once dismissed for failure of the complainant to put in appearance, therefore, cannot be restored. The question, whether the Magistrate was empowered to dismiss the complaint in default for non- appearance, is a matter apart and can be legitimately agitated in appropriate proceedings. It is, therefore, apparent that the learned Chief Judicial Magistrate had no jurisdiction to pass the order dated 23.10.2006.
In view of what has been stated herein above, the revision petition is allowed and the order dated 23.10.2006 is set aside, with liberty to the respondent to seek her remedy against the order dismissing her complaint for default in appearance, in accordance with law.
6.5.2009 (RAJIVE BHALLA)
GS JUDGE
Crl.Misc.No.M-79076 of 2006 3