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Judgment
Vishnu Sahai, J.—Heard Mr. S. V. Marwadi holding for Mr. Mundergi for the Petitioner and Mr. P. R. Singal A.P.P. for respondent No. 2. Respondent No. 1 though served has not engaged any counsel.
The legal contention raised by Mr. Marwadi in this petition, under Article 227 of the Constitution of India and section 482 of the Criminal Procedure Code is that once in a complaint case, the Magistrate dismisses the complaint for default, he cannot restore the same and the only remedy open to the complainant is to file a second complaint.
To substantiate his submission Mr. Marwadi placed reliance on the observations contained in paragraphs 9 and 10 of the decision of the Apex Court rendered in the case of Maj. Genl. A.S. Gauraya and Another Vs. S.N. Thakur and Another, . I have perused the said decision and find that the proposition canvassed by Mr. Marwadi has been laid down in it.
In the instant case the complainant (respondent No. 1), filed a complaint against the Petitioner u/s 138 of the negotiable Instruments Act, on 6-11-1990. On 15-6-1993 on account of absence of complainant the learned Magistrate dismissed the complaint but after some time, the same day, when the complainant appeared, he recalled his order. In my judgment, in view of the ratio contained in Maj. Genl. A.S. Gauraya and Another Vs. S.N. Thakur and Another, the learned Magistrate could not have recalled his order. Consequently I allow this petition and quash the order dated 15-6-1993 passed by the learned Magistrate restoring the complaint.
Rule is made absolute in the said terms.