Balwinder Singh v. Mahindra And Mahindra Financial Services Ltd




   
     

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 .* 01* 23   1.

The instant petition under Section 482 Cr.P.C. has been filed for quashing of the restoration order dated 15.12.2021 passed by the Judicial Magistrate 1st Class, Sangrur, whereby the complaint filed by respondent against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (bearing No. NACT-915-2017 instituted on 10.10.2017) has been ordered to be restored to its original number, after the same had been dismissed for want of prosecution by the same Court, vide its order dated 06.10.2021 as the same would amount to a review of its own order. 2.

Learned counsel appearing on behalf of the petitioner submits that the petitioner had availed a loan from the respondent-Company and, at the time of availing the said loan, he had furnished a cheque by way of security. It is contended that the said security cheque was subsequently

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misused by the respondent-Company, resulting in the institution of a complaint dated 10.10.2017 bearing No. NACT-915-2017, titled Mahindra & Mahindra Financial Services Limited v. Balwinder Singh, alleging commission of an offence under Section 138 of the Negotiable Instruments Act, 1881.

3.

It is further submitted that pursuant to the summoning order, the petitioner appeared before the trial Court on 13.05.2019, whereafter the trial commenced in accordance with law.

4.

On 06.10.2021, the respondent - Company/complainant moved an application seeking exemption from personal appearance. The said application was however declined and the complaint was dismissed for want of prosecution.

5.

Learned counsel submits that thereafter, the respondent - Company moved an application dated 14.10.2021, i.e. after a period of one week from the dismissal of the earlier application, for seeking restoration of the same.

6.

The said restoration application was allowed by the learned trial Court vide order dated 15.12.2021, subject to payment of costs of Rs. 2,500/- to be deposited with the District Legal Services Authority, Sangrur and the complaint was ordered to be restored to its original number. 7.

Aggrieved by the aforesaid order dated 15.12.2021, the present petition has been filed.

8.

Learned counsel appearing on behalf of the petitioner contends

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that in view of the bar contained under Section 362 Cr.P.C., a Court cannot alter, review, or modify its judgment or final order once the same has been signed, save and except for the limited purpose of correcting clerical or arithmetical errors. It is contended that the order dismissing the complaint for want of prosecution amounted to a final order disposing of the said petition and the learned Illaqa Magistrate lacked the jurisdiction to subsequently restore the same to its original number. By allowing the restoration application and reviving the proceedings, the Magistrate has transgressed the statutory limitation on jurisdiction and has undertaken an impermissible review of a final order, which is expressly prohibited under Section 362 Cr.P.C.

After the order of dismissal had been passed, the Magistrate became functus officio and could not have recalled or set aside the said order. Learned counsel further submits that, if the respondentcomplainant was aggrieved by the dismissal of its application, the appropriate and legally permissible course available to it was to approach the Court of Sessions by way of an appeal or revision and not to seek restoration before the same court by filing an application styled as one for recall or restoration.

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