IMPORTANT POINT
Petition u/s. 482 Cr.P.C. to hold that Magistrate had no jurisdiction to restore the complaint dismissed on default of appearance of complainant is not entertainable in the facts of the case.

M.M. Kumar, J.—This petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for brevity, ‘Cr.P.C.’) prays for quashing Order dated 13.11.2000 passed by Judicial Magistrate 1st Class, Gurgaon restoring the complaint of the respondent to its original number and the Order dated 24.9.2000 passed by the Additional Sessions Judge upholding the aforesaid Order of restoration of the Magistrate.

2. The complainant-respondent filed a complaint under Section 138/142 of the Negotiable Instruments Act, 1881 and on account of non-appearance of the complainant, the complaint was dismissed on 4.10.2000. When the complainant filed an application for restoration of the complaint., the Magistrate accepted the application by relying upon a Judgment of the Supreme Court in the case Associated Cement Co. Ltd. v. Keshavanand1 on the ground that the complaint was at the initial stage of summoning the accused-petitioner and the date was fixed for taking further steps towards progress of the complaint. It was further held that the Magistrate was competent to issue process for the purposes of securing the presence of the accused-petitioner. Against the aforementioned Order, the accused-petitioner filed Criminal Revision No.10 of 17.1.2001 and the Order passed by the Magistrate was upheld. The operative part of the Order dated 24.9.2002 reads as under:—

“Perusal of trial Court record reveals that the case was at the stage of securing presence of petitioner-accused when the complaint was dismissed in default. The learned trial Court had restored the complaint on the basis of law laid down by Hon’ble Supreme Court in Associated Cement Co. Ltd. v. Keshavanand, 1999 ISJ (Banking) 171. After hearing the counsel for the parties, the court do not find any infirmity with the impugned Order. It was ruled in the cited ruling that if the presence of complainant on a particular day is unnecessary, then the court would not be justified in dismissing his complaint and that resorting to the step of axing down the complaint will not be a proper exercise of the power vested with the Magistrate. The dismissal Order passed by learned trial Court on 4.10.2000 was obviously unwarranted because the presence of complai-nant on the date of default was unnecessary for taking further steps towards progress of the complaint inasmuch as the court, inspite of complainant’s absence, was competent to issue the process that was required for the purpose of securing accused’s presence. Viewed in this perspective, the dismissal of complaint was impro-per and its restoration, in the light of cited ruling, is perfectly justified. No case is, therefore, made out to interfere with the impugned Order.

Resultantly, the revision petition is dismissed. The parties are directed to appear before learned trial Court on 1.10.2002. Trial Court record alongwith copy of Judgment be sent back. Revision file be consigned to record room.”

3. Mr. B.S. Rana, learned Counsel for the petitioner has argued that the Magistrate did not enjoy inherent power to restore the complaint. In support of his submission the learned counsel has placed reliance on a Judgment of the Supreme Court in the case of Major General A.S. Gauraya and Anr. v. S.N. Thakur and Anr.2, and a Judgment of this Court in the case of Karandeep Singh v. Jagdish Goyal3 and argued that the Order of dismissal of the complaint passed by the Magistrate on account of non-appearance was the final Order and no revision having been filed against the aforementioned Order by the complainant it was liable to be maintained and the Magistrate did not have inherent jurisdiction.

4. After hearing the learned Counsel and perusing the aforementioned Judgments, I am of the considered view that the Order dated 13 .11.2000 passed by the Magistrate restoring the complaint has been upheld by the Additional Sessions Judge and it shall now be deemed that the Order dismissing the complaint passed on 4.10.2000 has been set aside by the Additional