( 1 ) HEARD Mr. B. A. Surti, learned counsel appearing for the petitioner and Mr. L. R. Pujari, ld. APP, appearing on behalf of the respondent-State. The present Revision Application is preferred against the order dated 08th April, 1994, passed by the ld. Chief Judicial Magistrate in Criminal Case No. 2769 of 1990. The petitioner is the orig. complainant and his grievance is that the order passed by the ld. Chief Judicial Magistrate already under challenge is bad in law and while passing the order, the learned Judge has failed in exercising jurisdiction vested with the Court. The trial Court could have afforded opportunity and the petitioner ought to have been given time to prosecute his case.

( 2 ) THE order under challenge is passed in a criminal case instituted on the strength of a private complaint. The complaint filed is for the offence punishable under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. But after recording verification, the ld. Chief Judicial Magistrate refused to issue process for the offence punishable under Section 420 of the Indian Penal Code and decided to proceed with the offence punishable under Section 138 of the Indian Penal Code. The said order is of 12th July, 1993. Thereafter, in the month of April when the matter was kept for recording evidence, the complainant was not found present and, therefore, the ld. Chief Judicial Magistrate decided to dismiss the complaint. The ld. Magistrate has recorded that the complainant was called time and again during the course of the day and practically when the Court hours were to over, the ld. Magistrate decided to dismiss the matter for want of prosecution and appropriate order was passed.

( 3 ) AS per the settled legal position, the order passed by the ld. Chief Judicial Magistrate dismissing the complaint for want of prosecution and non-availability of complainant in a private complaint has an effect of acquittal.

( 4 ) IT is argued by the learned counsel appearing for the respondent no. 4 Mr. Banaji that the present Revision Application is not maintainable in view of the scheme of the Code of Criminal Procedure, 1973 because it was possible for the petitioner to file an appeal against the order of acquittal and where the appeal lies, the Revision Application cannot sustain. In support of his submission, Mr. Banaji has taken me through the scheme of Sections 397, 401 and 378 of the Code of Criminal Procedure, 1973. In support of his submissions, he has placed reliance on the decision of this Court in the case of Fatumal Dayaram v. Rael Samson and anr. , reported in (11) GLR 1024, and he has taken me through relevant paragraph nos:8 and 9 of the judgment. It would be beneficial to quote relevant paragraphs of the said judgment which are as under :"8. With this background of the legal position as to the Magistrates power to restore as complaint which had come to an end by order of acquittal under sec. 247 of the Code, we may turn to a consideration of the provisions of the code on which reliance has been placed for invoking the revisional powers of this Court for setting aside the order of the Magistrate. Prima facie the order of the Magistrate,annexure a, and that is the only order in respect of which grievance has now been made is correct order because he had no jurisdiction to restore the complaint which had come to an end by an earlier order of acquittal an order which he had jurisdiction to make. It is therefore, difficult to see how this Court can exercise its powers of revision, if it has any, to set aside the order which was correctly made. It is necessary again to emphasise that on the submission made on behalf of the petitioner we are not now concerned with the order of dismissal of the complainant and the order of acquittal. We are here concerned with the refusal of the Magistrate to restore the complaint. But mr. Sompura goes further and argues that apart from the propriety of the High court exercising the r

Click Here to Read the rest of this document