JUDGMENT
R.L. Khurana, J.
1. Briefly stated the facts giving rise to the present petition may be stated thus. The petitioner is a company registered under the Companies Act, owned and controlled by the State of Himachal Pradesh. The respondent is the proprietor of a firm known as Chawla Iron and Steel Corporation, Chandigarh, now christened as Chawla Automobiles, Chandigarh. The petitioner has been supplying wire and barbed wire to the respondent on credit from time to time. The respondent also has been making payments for the supplies made to him from time to time. A sum of Rs. 52,000 was, paid by the respondent to the petitioner-company by way of five cheques as under :
SI. No.
Cheque
No.
Bank
Amount (Rs.)
Date of
cheque
1.
608453
Punjab
and Sind Bank, Sector 17C, Chandigarh
7,000
25-8-1989
2.
608454
-do-
10,000
25-9-1989
3.
608457
-do-
10,000
25-12-1989
4.
331383
-do-
15,000
15-1-1990
5.
608458
-do-
10,000
25-1-1990
2. All the abovesaid cheques upon having been presented to the bank were returned to the petitioner-company as dishonoured. The necessary notice was issued to the respondent calling upon him to make the payments of the amounts of the dishonoured cheques. The respondent failed to make the payment. Thereupon the petitioner filed a complaint for the prosecution of the respondent for the offences under Sections 415, 417, 418 and 420 of the Indian Penal Code, and for the offence under Section 138 of the Negotiable Instruments Act, 1881, before the learned Chief Judicial Magistrate, Shimla.
3. After holding the preliminary enquiry as required under Section 202 of the Criminal Procedure Code, the learned Chief Judicial Magistrate on July 12, 1990, came to the conclusion that there existed a prima facie case to proceed against the respondent for the offence under Section. 138 of the Negotiable Instruments Act, 1881. After taking cognizance of the said offence, the learned Magistrate issued process to the respondent as contemplated under Section 204 of the Criminal Procedure Code.
4. The case thereafter was transferred and assigned by the Chief Judicial Magistrate to the Judicial Magistrate 1st Class (4), Shimla, for disposal in accordance with law. On December 16, 1993, when the case was fixed for the service of notice under Section 251 of the Criminal Procedure Code, upon the respondent, none appeared on behalf of the petitioner before the learned Magistrate. Consequently, the Magistrate dismissed the complaint in default under Section 256 of the Criminal Procedure Code, and acquitted the respondent of the offence under Section 138 of the Negotiable Instruments Act, 1881.
5. The petitioner thereafter on December 29, 1993, approached the learned Magistrate by way of an application seeking the restoration of the complaint which was dismissed in default on December 16, 1993. The said application was dismissed by the learned Magistrate on December 30, 1993, vide the impugned order by holding that since the complaint was dismissed under Section 256 of the Criminal Procedure Code, and the respondent stood acquitted, the complaint dismissed in default could not be restored, since there was no provision in the Code of Criminal Procedure enabling the court to restore the complaint which was dismissed in default earlier.
6. Feeling aggrieved by the said order, the petitioner has approached this court by way of the present petition under Section 482 of the Criminal Procedure Code for quashing the order dated December 30, 1993, of the learned Magistrate. It has been averred that the absence of the petitioner on December 16, 1993, was due to reasons beyond his control, inasmuch as, the petitioner had received a message about the death of near relation, and, therefore, he could not reach the court before 3 p.m. On coming to the court, it became known that the complaint had already been dismissed in default. It has further been contended that that the order of the Magistrate refusing to restore the complaint dismissed in default is against law and liable to be set aside.
7. In Bindeshwari Prasad Singh v. Kali Singh , AIR 1977 SC 2432, it has been held by the apex court as follows (headnote) :
“There is no provision in the Criminal Procedure Code empowering a Magistrate to review or recall a judicial order passed by him. Inherent powers under Section 561A are only given to the High Court and unlike Section 151 of the Criminal Procedure Code, subordinate criminal courts have no inherent powers.”
8. The apex court again in Maj. Genl. A.S. Gauraya v. S. N. Thakur, AIR 1986 SC 1440, 1442, has held as under (headnote) :
“So far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a magistrate cannot exercise any inherent jurisdiction, to restore the case. A second complaint is permissible in law if it could be brought within the limitations imposed by the Supreme Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 ; [1962] 1 Crl. LJ 770. Filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal Procedure Code does not contain any provision enabling the criminal court to exercise such an inherent power. Also, what the court has to see is not whether the Code contains any provision prohibiting a magistrate from entertaining an application to restore a dismissed
complaint, but the task should be to find, out whether the said Code contains any provision enabling a magistrate to exercise an inherent jurisdiction which he otherwise does not have.”
9. Admittedly, in the present case, the respondent was being proceeded against for the offence under Section 138 of the Negotiable Instruments Act, 1881. Such an offence is a non-cognizable offence and triable as a summons case. Therefore, the procedure as contained in Chapter XX of the Criminal Procedure Code would be applicable. Section 256 of the Criminal Procedure Code, which falls under Chapter XX of the Criminal Procedure Code, provides that upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day.
10. The complaint on behalf of the petitioner-company was filed through its Accounts Officer (Legal), Shri R. K. Sood. The said Shri R. K. Sood was thus prosecuting the complaint for and on behalf of the petitioner-company. On the date fixed in the case, that is, December 16, 1993, Shri R. K. Sood, was not present nor the counsel representing the petitioner-company was present. Faced with such situation, the learned magistrate while acting under Section 256 of the Criminal Procedure Code had dismissed the complaint and acquitted the respondent of the offence under Section 138 of the Negotiable Instruments Act, 1881. The impugned order dated December 30, 1993, passed by the learned magistrate refusing to restore the complaint dismissed in default earlier on December 16, 1993, in view of the law laid down by the apex court, therefore, cannot be said Ho be bad, since the magistrate had no power to order the restoration of the complaint dismissed in default by him.
11. Next comes the question whether this court in exercise of its inherent powers under Section 482 of the Criminal Procedure Code, can set aside the order dated December 16, 1993, and direct the restoration of the case which was dismissed in default.
12. There is no denying that the dismissal of the complaint in default under Section 256 of the Criminal Procedure Code, entails the acquittal of the accused. Once an accused has been acquitted of the offence, the law provides a remedy by way of an appeal against the order of acquittal. Once a remedy by way of appeal is available to the petitioner under section 378(4) of the Criminal Procedure Code, on the failure of the petitioner to avail of such a remedy, this court is not to exercise the inherent powers for interfering with the impugned order.
13. In Thomas v. Emmannuel [1986] Crl LJ 428, it has been held by the Kerala High Court, as under :
“Section 482 of the Code is often being attempted to be used against the object and purpose for which it is intended. Those powers are intended to be exercised in cases of grave and clear injustice in order to give effect to orders, prevent abuse of process of courts or otherwise to secure the ends of justice. That power cannot be exercised when there is a remedy already available. For doubtful or trivial matters also inherent power cannot be invoked.”
14. The learned magistrate while passing the order dated December 16, 1993, dismissing the complaint in default and acquitting the respondent of the offence under Section 138 of the Negotiable Instruments Act, 1881, had not acted illegally in any manner. The said order on the face of it is legal and falls within the ambit of section 256 of the Criminal Procedure Code. Such order of acquittal cannot be interfered with by this court in exercise of its inherent powers under Section 482 of the Criminal Procedure Code. A petition, therefore, under Section 482 of the Criminal Procedure Code, against an order of acquittal passed under Section 256 of the Criminal Procedure Code is not maintainable.
15. Consequently, the present petition fails and the same is accordingly dismissed.