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1997 (2) Crimes 591
HIMACHAL PRADESH HIGH COURT
R.L. Khurana, J.
H.P. Agro Industries
Corporation Ltd. -Petitioner
versus
M.P.S. Chawla - Respondent
Cr. M.P. (M) No.5 of 1994
Decided on 18-9-1996
Counsel for the parties:
For the Petitioner: Mr. C.B. Barowalia,
Advocate.
For the Respondent: Mr. Bimal Gupta, Advocate.
IMPORTANT POINT
When accused was acquitted in dismissal of complaint u/s 256 Cr. P.C. remedy is by way of appeal & in absence oj availing such remedy, High Court is not to exercise inherent powers to interfere with impugned order.
Headnote:(i) Criminal Procedure Code, 1973 - Section 256 - Dismissal of complaint u/s 138 Negotiable Instruments Act for non-appearance of complainant - Case was fixed for service of notice u/s 251 Cr. P.C. up on respondent &: respondent was acquitted - Impugned order refl1sing to restore complaint dismissed in default could not be said bad. (Para 10)
(ii) Criminal Procedure Code, 1973 - Section 482 - Dismissal of complaint in default u/s 256 Cr. P.C. - It entailed acquittal of accused Remedy was, by way of appeal u/s 378(4) Cr. P.C. - On failure-of complainant-petitioner availing remedy of appeal, high Court was not to exercise inherent powers to interfere with impugned order. (Paras 12 & 14)
Result: Petition dismissed.
Certainly. Based on the provided legal document, the key points are as follows:
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When an accused is acquitted due to the dismissal of a complaint under Section 256 of the Criminal Procedure Code (Cr. P.C.), the appropriate remedy is by way of an appeal. If the complainant fails to avail this remedy, the High Court is not authorized to exercise its inherent powers to interfere with the impugned order (!) (!) .
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The order dismissing the complaint in default under Section 256 Cr. P.C. results in the acquittal of the accused. Such an order is considered final, and in the absence of specific provisions in the Cr. P.C. allowing for the review or recall of this order, the court cannot exercise inherent jurisdiction to restore the complaint or revive the case (!) (!) .
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The procedure under Section 256 Cr. P.C. mandates that if the complainant does not appear on the date fixed, the Magistrate shall, unless there are reasons to adjourn, dismiss the complaint and acquit the accused. This order of acquittal is final and cannot be set aside by the court through inherent powers (!) .
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The exercise of inherent powers under Section 482 of the Cr. P.C. is limited to preventing grave injustice, securing the ends of justice, or preventing abuse of process. Such powers should not be invoked when an effective remedy, such as an appeal, is available (!) (!) .
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The court emphasized that once an order of acquittal is passed under Section 256, it cannot be challenged or interfered with in exercise of inherent powers, especially if the remedy of appeal is available and has not been exhausted (!) .
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In the specific case, the court found that the order dismissing the complaint and acquitting the respondent was legal and within the scope of Section 256 Cr. P.C. Therefore, the petition to set aside this order was dismissed (!) (!) .
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Overall, the principle established is that orders of dismissal in default under Section 256 Cr. P.C. are final, and the court’s inherent powers do not extend to reviving such dismissed complaints or reversing acquittals unless specific provisions allow or the remedy of appeal has been exhausted (!) (!) .
Please let me know if you need a detailed analysis or further assistance.
JUDGMENT
R.L. Khurana, J. - Briefly stated the facts giving rise to the present petition may be stated thus. The petitioner is a Company registered under the Companies Registration Act, owned and controlled by the State of Himachal Pradesh. The respondent is the proprietor of the firm known as M/s. Chawla Iron and Steel Corporation. Chandigarh, now christened as M/s. Chawla Automobiles, Chandigarh. The petitioner has been supplying wire and barded 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 respondent to the petitioner’s company by way of five as under:
Sr. No.
Cheque No.
Bank
Amount
Date of cheque
1.
608453
Punjab & sind Bank, Sector, 17C, Chandigarh
Rs. 7000/-
25-8-1989
2.
608454
- do -
Rs. 10,000/-
25-9-1989
3.
608457
- do -
Rs. 10,000/-
25-12-1989
4.
331383
- do -
Rs. 15,000/-
15-1-1990
5.
608458
- do -
Rs. 10,000/-
25-1-1990
2. All the abovesaid cheques upon of the respondent for the offences under Sections 415, 417, 418 and 420 I.P.C. and for the offence under Sec. 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 Code of Criminal Procedure, the learned Chief Judicial Magistrate on 12- 7 -1990 came to the conclusion that there existed a primafacie case to proceed against the respondent for the offence under Section 138 of the Negotiable Instruments Act. 1881 before taking cognizance of the said offence the learned Magistrate issued process to the respondent as contemplated under Section 201 of the Code of Criminal Procedure.
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 16-12-1993, when the case was fixed for the service of notice under Section 251 Cr. P.C. 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 Cr. P.C. and acquitted the respondent of the offence under Sec. 138 of the Negotiable Instruments Act. 1881.
5. The petitioner thereafter on 29-12-1993 approached the learned Magistrate by way of an application seeking the restoration of the complaint which was dismissed in default on 16-2-1993. The said application was dismissed by the learned Magistrate on 30-12-1993 vide the impugned order by holding that since the complaint was dismissed under Section 256. Code of Criminal Procedure and the respondent stood acquitted the complaint dismissed in default could not be re-stored 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 Code of Criminal procedure for quashing the order dated 30-12-1993 of the learned Magistrate. It has been averred that the absence of the petitioner on 16-12-1993, was due to the reasons beyond his control, inasmuch as, the petitioner had received a message about the death of the 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 the order of the Magistrate refusing to restore the complaint dismissed in default is against laws and liable to be set aside.
7. In Bindeshwari Prasad Singh, v. Kali Singh1, it has been held by the Apex Court as follows:
"There is no provision in Cr. P.C. empowering a Magistrate to review or recall a judicial order passed by him. Inherent powers under Section 561-A are only given to High Court and unlike Section 151 Cr. P.C. subordinate criminal courts have no inherent powers.
8. The Apex Court again in Maj. Genl. A.
