JUDGMENT
Viney Mittal, J.
1. The present Criminal Miscellaneous Petition has been filed under Section 482 Cr.P.C. by petitioner Bhagwant Singh for quashing the orders dated September 7, 1998 passed by the learned Judicial Magistrate, Farid-kot, as well as the orders dated February 12, 1999 passed by the learned Additional Sessions Judge, Faridkot.
2. A complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1981 was filed by the complainant-M/s Suresh Steel Industries (the present respondent) against Bhagwant Singh (the present petitioner). During the course of the proceedings before the learned Judicial Magistrate, Fariodkot, on February 10, 1998, the complainant was not present before the Court and, therefore, the Complaint was dismissed for want of prosecution.
3. Subsequently, the complainant moved an application before the learned trial magistrate and requested for the restoration of the complaint. In the aforesaid application it was averred by the complainant that his wife had got high fever and the complainant being the only male member of the family had to take her to the doctor for treatment and therefore he could not be present at the time when the case was called for hearing.
4. The Learned trial Magistrate felt satisfied with the reasons given by the complainant and also found that on February 10, 1998, the matter was fixed for consideration of an application moved by the accused for filing of some documents. It was also observed by the Learned trial Magistrate that on the day the order of dismissal for non-prosecution had been passed was not the stage when the presence of the complainant was required. Therefore, vide order dated September 7, 1998 the Learned trial Magistrate ordered the restoration of the complaint from the stage where it was dismissed. The aforesaid order dated September 7, 1998 passed by the Learned trial Magistrate has been appended as annexure P-2 to the present petition. Petitioner Bhagwant Singh felt aggrieved against the restoration of the complaint and, therefore, approached this court through Revision Petition No. 105 of 1998. This Court vide order dated October 16, 1998 dismissed the aforesaid Revision Petition with a direction to the petitioner to first approach the court of Sessions.
5. Accordingly a revision petition was filed by the aforesaid Bhagwant Singh (the present petitioner) before the learned Sessions Judge. It was heard by the learned Additional Sessions Judge, Faridkot. Vide order dated February 12, 1999 the Learned Additional Sessions Judge, Faridkot found no merit in the Revision Petition and the same was dismissed.
6. It is against the aforesaid order passed by the Learned trial Magistrate restoring the complaint as well as the order dated February 12, 1999 passed by the learned Additional Sessions Judge dismissing the Revision Petition, that the present petition has been filed. The aforesaid orders have been appended as Annexure P/2 and P/5, respectively with this petition.
7. The sole ground taken by Shri Amit Rawal learned counsel for the petitioner is that once the complaint had been dismissed for non-appearance of the complainant, the said order passed by the Learned trial Magistrate had become final and the trial Magistrate had no power to restore the case. To support his contention Shri Rawal relies upon the judgment of the Apex Court in 1988(1) R.C.R. 3 (Major Genl. A.S. Gawaya and Ors. v. S.N. Thakur and Anr.) Sh. Rawal submits that there is no inherent power vested in a trial Magistrate and therefore the order dated September 7, 1998 (annexure P-2) was wholly without jurisdiction. Sh. Rawal has further challenged the order dated February 12, 1999 (annexure P-5) passed by the learned Additional Sessions Judge also by submitting that in fact when the order dated September 7, 1998 passed by the learned trial Magistrate was without jurisdiction, then the learned Additional Sessions Judge committed an error of law in not setting aside the order. Thus, it is maintained by Sh. Rawal that the orders annexure P-2 and P-5 are liable to be quashed.
8. On the other hand Sh. K.L. Kohli learned counsel for the respondent-complainant has submitted that the order dated February 10, 1998 passed by the learned trial Magistrate whereby the complaint was dismissed for non-prosecution could not be legally sustained inasmuch as on the aforesaid date only an application filed by the accused for production of the documents was fixed and the complaint had already been fixed for March 19, 1998. Shri Kohli has submitted that in fact on the previous date i.e. January 6, 1998, the complaint was adjourned to March 19,1998 for the evidence of the complainant. Subsequently an application had been moved by the accused for production of the documents and it was the aforesaid application alone which was fixed for February 10, 1998 for consideration. Shri Kohli maintains that in these circumstances the trial Magistrate at the most could pass orders on the aforesaid application and not in the main complaint. It is submitted by Shri Kohli that even otherwise there was sufficient cause for non-appearance of the complainant on February 10, 1998 at the time when the case was called up for hearing. It is further submitted by Sh. Kohli that even otherwise since on February 10, 1998 neither the presence of the complainant was required nor he had absented himself intentionally therefore it was a fit case where the trial Magistrate should have exercised his power under Section 256 Cr.P.C. and dispensed with the attendance of the complainant and adjourned the case to some other date. In support of this submission Sh. Kohli relies upon the judgment of the Apex Court in Associated Cement Co. Ltd v. Keshvanand, (1998)25 Cr.L.T. 15 (S.C.) : (1998-2)119 P.L.R. 812 (S.C.). Shri Kohli also relies upon the judgment of this court in Nitika Cement v. Dhiman Trading Co., 1999 I.S.J. (Banking) 352 to contend that in interest of justice, the Learned trial Magistrate should have adjourned the case to some other date on February 10, 1998 rather then dismissing the complaint.
9. I have given my thoughtful consideration to the entire controversy. As far as the powers and the jurisdiction of the trial Magistrate to order the restoration of the complaint dismissed in default or non-prosecution is concerned, it is settled that in fact there is no such power available with a trial Magistrate to restore the criminal complaint dismissed in default. It has been laid down in the case of Major General A.S.Gauraya and Anr. v. S.N. Thakur and Anr. (supra) by the Apex Court that once a criminal complaint has been dismissed in default by a Magistrate for non-appearance of the complainant, then the aforesaid order is a final order and the Magistrate has no inherent power to restore the case. On the basis of the aforesaid judgment, I have no hesitation in holding that the order dated September 7, 1998 passed by the learned Judicial Magistrate Ist Class, Faridkot (Annexure P/20 cannot be legally sustained and is liable to be set aside.
10. However, from the detailed narration of the facts above and from the perusal of the record, I find that when the complaint was fix for January 6, 1998 before the learned trial Magistrate, the same was adjourned to March 19, 1998 for recording the evidence of the complainant. In the meantime an application was moved by the accused-petitioner for production of certain documents. A notice of the aforesaid application was given to the complainant and the case was adjourned to January 16, 1998. On January 16, 1998 a reply was filed by the uomplainant and the mater was adjourned to February 10, 1998 for consideration. On the aforesaid date since the complainant was not present, therefore, the complaint was dismissed in default. While passing the aforesaid order dated 10, 1998 learned trial Magistrate completely ignored the fact that the complaint stood already adjourned to March 19, 1998 vide order dated January 6, 1998 and on the aforesaid date it was merely the application filed by the complainant which was fixed for consideration before the Learned trial Magistrate. In these circumstances, the presence of the complainant on the aforesaid date i.e., February 10, 1998 was not at all required. In any case the absence of the complainant could not have resulted in passing the order of dismissal in default of the main complaint itself. It is apparent that while passing the order dated February 10, 1998 the learned trial Magistrate was totally oblivious of the fact that the main case was not before him on that date.
11. In any case while passing the aforesaid order, the learned trial Magistrate did not keep into consideration the provisions of Section 256 of the Code of Criminal Procedure which empowered a Magistrate to exempt the personal appearance of the complainant and also to consider as to whether the personal presence of the complainant was actually required on that date or not. As held in the Associated Cement Co., Ltd. (supra) by the Hon’ble Supreme Court of India, the Magistrate was to consider as to whether the presence of the complainant on that date was necessary or not before resorting to the step of dismissing the complaint in default. Since the aforesaid consideration was not kept in view therefore, the aforesaid order Annexure P-1 itself being without jurisdiction and wholly unwarranted under the circumstances of the case cannot be legally sustained.
12. Thus, while holding the order dated September 7, 1998 passed by the Learned trial Magistrate to be without jurisdiction. I also in exercise of my inherent powers set aside the order dated February 10, 1998 passed by the learned trial Magistrate whereby the complaint filed by the complainant-respondent was dismissed in default.
13. In view of the matter, no order is required to be passed with regard to order Annexure P/5 passed by the learned Additional Sessions Judge.
14. As a result of the aforesaid directions, orders dated February 10, 1998. (An
nexure P/1) and dated September 7, 1998 (Annexure P/2) are set aside and the com
plaint filed by the respondent-complaint under Section 138 read with Section 142 of the
Negotiable Instruments Act, 1881 is hereby restored to its original number and the
learned trial Magistrate is directed to proceed with the aforesaid complaint from the
stage when the same was dismissed in default.