AI Structured Summary
Not yet generated for this judgment
Judgment
A.P. Bhangale, J.—Heard Mr. Deepak Gupta, Adv. for Respondent No. 1 and Mr. A.S.Parihar, Adv. for Respondent No. 2/State. None appears on behalf of the applicant.
By this application, the applicant prays for to quash and set aside the judgment and order dt.24.8.2010 passed by the learned Additional Sessions Judge, Chandrapur in Criminal Revision No.,49 of 2010 with a further prayer to restore Summary Criminal Complaint Case No. 11 of 2007 and to decide the complaint expeditiously.
It appears that Criminal Complaint u/s 138 of the Negotiable Instruments Act was filed by the present applicant against Respondent No. 1 Ujwala in which the process for the offence punishable u/s 138 of the Act was issued on 15.7.2008. Later, on 28.8.2009, when complainant remained absent, the complaint came to be dismissed for want of prosecution. But, on the same date, the complainant moved an application for restoration of the complaint which was restored on 28.8.2009 by the learned Judicial Magistrate, First Class, Chandrapur. Aggrieved by the order for restoration of the complaint, Respondent No. 1 questioned its legality and propriety by filing Criminal Revision No. 49 of 2010 before the learned Additional Sessions Judge, Chandrapur, who, by the impugned judgment and order held that there was No. provision in Code of Criminal Procedure for restoration of the complaint which was dismissed in default u/s 256 of the Code of Criminal Procedure as the learned trial Magistrate had No. inherent jurisdiction to restore the complaint. The remedy for the complainant was to file an appeal u/s 378 of the Code of Criminal Procedure challenging acquittal of the accused pursuant to the order of dismissal of complaint passed by the learned trial Magistrate. Another remedy was to file second complaint as permissible under the law.
The learned Advocate for Respondent No. 1 placed reliance upon the case of Raja Upadhyay Vs. State of Maharashtra and Another, (Bombay High Court) in order to submit that when the trial Magistrate had passed an order u/s 256(1) of the Code of Criminal Procedure which resulted in acquittal of the accused, the complainant has remedy to file an appeal against acquittal. He also placed reliance upon the ruling in the case of Om Gayatri and Company and Ors. v. State of Maharashtra and Anr. reported in 2006 (1) Bom.C.R. (Cri.) 756 in order to submit that when complainant remains absent in the trial Court, the Court has option either to acquit the accused or to adjourn the case or to dispense with the attendance of complainant and to proceed further with the case which is triable as a summons case. Since the order was passed in view of provisions of Section 256(1) of the Code of Criminal Procedure, it has resulted in acquittal, against which the applicant (complainant) has remedy of appeal or he could have filed second complaint as permissible. Regarding delay, which has occurred because of time lost by the complainant, in the facts and circumstances of the case, appropriate application may be preferred with a prayer for condonation of delay by the applicant (Original complainant). Considering this legal position, therefore, I do not find any ground for interference with the impugned judgment and order by exercising power u/s 482 of the Code of Criminal Procedure. Even otherwise, when there was remedy of appeal available in view of Section 378 of the Code of Criminal Procedure, challenging acquittal in the trial Court or alternative remedy by way of second complaint as may be permissible, the provisions of Section 482 of the Code of Criminal Procedure cannot be invoked. Hence, the application is dismissed. Parties to bear their own costs.