The necessity of following the prescribed procedure for taking cognizance of an offence on complaint and the dismissal of a complaint leading to the acquittal of the accused.

The above petition is filed seeking for a direction to call for the records relating to C.C.No.212/2003 on the file of the Judicial Magistrate, Tambaram and quash the same.

2. The petitioner is an accused for the offence punishable under Sec. 138 of Negotiable Instruments Act. The learned Magistrate, after recording the sworn statement of the complainant, has taken the case on file and issued summons to the petitioner on payment of process fee. Though the petitioner has taken up the proceedings before the learned Magistrate, the present petition to quash the proceedings has been filed before this Court on certain technical grounds.

3. Learned counsel for the petitioner, at the first instance, has referred to the docket entries/endorsements made by the learned Magistrate on various dates. On 03.04.2003, the learned Magistrate made the following endorsement on the complaint made before him:-

"Check and Call on 4. 2003",

and, on 4. 2003, the following endorsement came to be made,

"Complainant called absent. Hence complaint is dismissed for default."

That being so, subsequently, by making the following entry,

"Complaint filed with complainant. Complied and re-presented".

on 24. 2003, the learned Magistrate ordered for issuance of summons as follows:

"Perused the records. Sworn statement taken. Taken on file under Sec.138 NI Act. Issue summons on payment of process fee. Call on 27. 03. "

According to the learned counsel, the endorsement/order of the learned Magistrate made on 4. 2003 virtually amounts to dismissing the complaint for want of prosecution and such order having become final, the subsequent proceedings of the Magistrate in restoring the complaint to file and issuing summons to the petitioner are wholly untenable and unwarranted. To substantiate such contention, he relied on the judgment of the Honble Supreme Court reported in 1988 (1) R.C.R 3 (S.C) (Major General A.S. Gauraya and Another vs S.N. Thakur and Another), wherein, it has been observed that once the complaint is dismissed for non-appearance of the complainant, it is a final order and the Magistrate has no inherent power to restore the case. By submitting that the learned Magistrate should not have reopened the case by himself to take cognizance of the offence, learned counsel seeks to quash the proceedings.

4. Per contra, learned counsel for the respondent/complainant submits that the order dated 4. 2003 cannot be construed as an order passed after taking cognizance of the offence. On 03.04.2003, though the complaint was presented before the learned Magistrate, the endorsement made was only to the effect, "Check and Call on 10.04.2003" and on 4. 2003, at the time when the complainant was called for further proceedings, she was absent and therefore, the learned Magistrate dismissed the complaint for default and it does not mean that the Magistrate had applied his mind to the allegations made in the complaint and passed a judicial order so as to constitute the status of a final order. At best, the endorsements dated 03.04.2003 and 10.04.2003 must be construed as office endorsements. Subsequently, the complainant appeared on 24.04.2003 and made an endorsement to substantiate her presence, whereupon, the learned Magistrate restored the complaint to his file on the same day and after recording her sworn statement, issued summons to the accused. The order passed on 24.04.2003 being a judicial order, the earlier endorsement made by the learned Magistrate need not be taken into consideration and since no prejudice is caused to the petitioner/accused on account of this, the complaint need not be quashed.

5. Learned counsel for the respondent relied on the case law reported in (2004) 1 SCC 691 (State of M.P vs Awadh Kishore Gupta) and submitted that all courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of a