Hardeep Singh Sandhu v. M/S Intex Technologies (India) Limited



        


 

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256. Non- appearance or death of complainant.

(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub- section (1) shall, so far as may be, apply also to cases where the non- appearance of the complainant is due to his

death."

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,"= "Learned counsel for the petitioner inter-alia contends that the revisional Court had no jurisdiction to restore the complaint, which was dismissed in default for want of prosecution on account of non appearance of the respondent and therefore, the impugned order Annexure-P6 is illegal. In support of his contention, he has placed reliance upon the decision of the Bombay High Court in Vinay Kumar 1

vs. Ramesh Saboo, 2009(5) R.C.R. (Criminal) 164. The respondent- complainant had only remedy to get restored his complaint by way of filing appeal before this Court under Section 378 Cr.P.C. The lower revisional Court, without any such application and having no jurisdiction to restore the complaint, has committed a grave illegality in passing the impugned order dated 21.11.2014 (Annexure-P6). After giving my anxious consideration to the submissions made, I find merit in the instant revision petition inasmuch as revisional Court had no jurisdiction to suo motu order for restoration of complaint even with or without any such application.

Undisputedly, no application for restoration of complaint was filed before the revisional Court, who instead of restoration of the complaint directing the trial Court to proceed further with the same in accordance with law, ought to have dismissed the revision petition as withdrawn in view of the statement of the petitioner, without further going into the merits of the case. In view of the settled proposition of law that a complaint under Section 138 of the Act, dismissed in default, amounts to acquittal of the accused and the Magistrate has no jurisdiction to restore or revive the same. The only remedy available to him is under Section 378 Cr.P.C. Reference in this regard can be made to Vinay Kumar's case (supra). In view of above, the instant petition is accepted. The impugned order dated 21.11.2014 is set aside."




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,$= "It has been further contended by learned counsel for the petitioner-complainant that the present petition under Section 482 Cr.P.C, is also maintainable and on the point, he has placed reliance upon Standard Corporation India Limited Vs. Kamblekar Ramesh 2011(4) R.C.R. (Criminal) 564. However, perusal of this judgment shows that it was an appeal directed by the complainant against the judgment passed by learned trial Court vide which complaint filed by the complainant under Section 138 of the Act was dismissed for non-prosecution. He also placed reliance upon another judgment passed by Co-ordinate Bench of this Court in Parle Biscuits (P) Ltd Vs. M/s Sandeep Marketing Company and another 2011(4) R.C.R. (Criminal) 687, wherein challenge was to the order vide which application for restoration of complaint was dismissed in default.

In my view, there is force in the argument of learned counsel for the respondent-accused. Law is well settled that if a complaint under Section 138 of the Act is dismissed in default due to nonappearance of complainant, the same amounts to acquittal and complainant is having right of appeal under Section 378(4) Cr.P.C. Hence, neither revision nor petition under Section 482 Cr.P.C. is maintainable without availing statutory right of appeal as provided under Section 378(4) Cr.P.C. Learned counsel for respondent-accused also placed reliance on a judgment of this Court in Balbir Kaur Aujla Vs. Balraj Singh 2006(2) R.C.R. (Criminal) 650; another judgment passed by Delhi High Court in M/s Becton Dickinson India Ltd. Vs. M/s Shika Pharma (P) Ltd. And another 2010 (5) R.C.R. (Criminal) 735 and another judgment passed by Bombay High Court (Aurangabad Bench) in Vinaykumar Vs. Ramesh Saboo 2009(5) R.C.R. (Criminal) 164.



In view of the afore-mentioned legal proposition, the present petition is not sustainable and hence, the same is, hereby, dismissed being not maintainable."










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