Criminal Courts lack the power to review their own orders, and dismissal for non-prosecution is justified when the complainant fails to appear consistently.

ORDER :

(Y. LAKSHMANA RAO, J.)

The Revision has been preferred under Sections 397 and 401 of Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C’) challenging the order passed by the learned Additional Judicial Magistrate First Class, Addanki in Crl.M.P.No.186 of 2009 in C.C.No.208 of 2007 dated 30.12.2008, whereby and whereunder the miscellaneous petition filed for restoration of C.C.No.208 of 2007 on to the file, was dismissed.

2. The revisionist being the complainant filed a complaint under Section 190 read with 200 of ‘the Cr.P.C.,’ for the alleged offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’). It was the case of the revisionist that the respondent No.1/accused issued two cheques for an amount of Rs.2,00,000/- and Rs.1,00,000/- respectively, for discharge of legally enforceable debt. The learned Magistrate in the course of the enquiry having waited for several times for the presence of the complainant, ultimately, on 30.12.2008, dismissed the complaint for want of the presence of the revisionist for default/non-prosecution of the complaint and the respondent No.1 was discharged under Section 249 of ‘the Cr.P.C.’

3. Feeling aggrieved by the said order, the revisionist had filed Crl.M.P.No.186 of 2009 before the learned Magistrate and the learned Magistrate dismissed the miscellaneous petition. The relevant paras of the impugned order are beneficial to be extracted as under:

“3. Heard and perused the record as well as the contents of the petition. It could be seen from docket order of the C.C.No.208 of 2007 that since from the date of filing the complaint, the petitioner/defacto-complaint remained absent in attending the Court except on 13.04.2007 on which date his sworn statement was recorded by this Court. On 30.12.2008 there is no report from the petitioner/defacto-complaint either personal or through his counsel. In such circumstances, this Court dismissed the complaint for the default of the complainant and the accused was discharged U/s.249 of Cr.P.C. At this juncture, the petitioner/defacto complainant filed this present petition seeking restoration of his case. It is the settled law that once the complaint was dismissed by the Sub0ordinate Criminal Courts it has become Functus Officio and there is no provision in Criminal Procedure Code, 1973 to enable the sub- ordinate Criminal Court to exercise inherent powers. As such, this Court has no jurisdiction or power to restore the complaint and to review its own order. As such, the petition of the petitioner is liable to be dismissed.

4. I agree with the finding of the judgment relied by the petitioner between Danvanti Mutual Funds Limited v/s. State of Haryana and another reported in 2007 Crl.L.J2596. In support if his plea but the factual matrix of the case in that petition and the case in hand are not one and same as such, I am of the opinion that the above citation is not applicable to the present case. Basing on the above all discussion this petition is dismissed.”

4. Sri G. Vasantha Rayudu, learned counsel for the revisionist while reiterating the grounds of the revision argued that the learned Trial Court failed to consider that the matter was coming for the examination of the accused under Section 251 of ‘the Cr.P.C.,’ so the presence of the complainant was not necessary. The order of dismissal of the complaint for non-appearance of the complainant is perverse and vitiated by illegalities. If the order passed by the learned Magistrate is sustained, there will be miscarriage of justice, irreparable loss and hardship to the revisionist.

5. It is further argued that the case was called on 30.12.2008, on which date, the presence of the complainant was not necessary, and when the accused was absent for his examination, the learned Magistrate ought not to have dismissed the complaint. The learned counsel for the revisionist relied on the decision in Danvanti Mutual Funds Limited v. State of Haryana, [2007 CRI.L.J 2596] and submitt