The necessary consequence of dismissal of complaint for non-appearance of the complainant is the acquittal of the accused, and the jurisdictional limitations on reviewing such orders under Section 369 of the J&K Cr.P.C. were established.

JUDGMENT :

1. The petitioner has challenged the complaint filed by respondent against him alleging commission of offence under Section 138 of Negotiable Instruments Act, as also order dated 08.11.2016 passed by Judicial Magistrate 1st Class (Munsiff), Kupwara, in the said complaint.

2. It appears that respondent had filed a complaint against the petitioner alleging commission of offence under Section 138 of Negotiable Instruments Act ['the Act for short'] before the Court of Judicial Magistrate, 1st Class, Kupwara (hereinafter referred to as the trial Magistrate). In the complaint it was alleged by the complainant/respondent that the petitioner/accused had issued five cheques for a total amount of Rs.19.50 lacs in discharge of his liability. All these cheques are stated to have been dishonoured for insufficiency of funds whereafter respondent/complainant served a notice of demand upon the petitioner and when he failed to pay the amount despite receipt of the notice, the impugned complaint came to be filed by the respondent/complainant before the trial Magistrate.

3. The record of the trial court shows that on 08.11.2016, the learned trial Magistrate has, after recording the preliminary evidence of the complainant/respondent, taken cognizance of the offence and issued process against the petitioner/accused. However, on 06.12.2017, the learned trial Magistrate dismissed the complaint for non-prosecution on account of non-appearance of the complainant/respondent. The trial court record further reveals that on 07.02.2017, the complainant/respondent filed an application before the learned trial Magistrate seeking restoration of the aforesaid complaint. The learned trial Magistrate has, vide order dated 19.04.2017, allowed the application of respondent/complainant and restored the complaint to its original number.

4. The petitioner/accused has challenged the complaint as well as the proceedings initiated thereon including the order dated 08.11.2016 whereby cognizance of the offence has been taken by the learned trial Magistrate and process has been issued against him.

5. It has been contended by the petitioner that the impugned complaint was filed by the respondent beyond the prescribed period of limitation and that the learned trial Magistrate, has without recording any reasons for condoning the delay in filing the complaint, issued process against the petitioner. It is further contended that upon dismissal of the complaint for non-prosecution, the learned trial Magistrate had no jurisdiction to restore the complaint and, as such, the proceedings initiated against the petitioner on the impugned complaint are without jurisdiction.

6. The learned counsel for the respondent/complainant has submitted that the order dated 08.11.2016 may be set aside and the case may be remanded back to the learned trial Magistrate to pass fresh order after hearing the parties.

7. I have heard learned counsel for the parties and perused the material on record including the trial court record.

8. In the instant case, the petitioner has not only challenged order dated 08.11.2016 whereby cognizance of the offence has been taken and process has been issued against him but he has also challenged the proceedings initiated on the complaint. These proceedings include order dated 19.04.2017 whereby the learned trial Magistrate has restored the complaint after the same had been dismissed for non-prosecution on 06.12.2016.

9. If we go to the order of dismissal of complaint passed by the learned trial Magistrate, it reveals that the learned trial Magistrate has simply dismissed the complaint for non-prosecution and without recording acquittal of the accused. Section 247 of J&K Code of Criminal Procedure, which is applicable to the instant case, provides the consequences of non-appearance of the complainant. It reads as under :

"247. Non-appearance of complainant.-(1) lf the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or