R RAJESHWARI Vs. H N JAGADISH

JUDGEMENT

(1.) PETITION FILED UNDER SECTION 482 OF THE CR. P. C. , FOR RESTORATION OF A private COMPLAINT IN P. C. R. NO. 234 OF 1997 DISMISSED FOR DEFAULT ON 18-9-1999.

(2.) IT IS THE CASE OF THE PETITIONER-COMPLAINANT THAT, SHE HAD FILED A PRIVATE COMPLAINT FOR PROSECUTING THE ACCUSED FOR AN OFFENCE UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT. ON THE FATEFUL DAY, WHEN THE CASE WAS CALLED, THOUGH SHE WAS PRESENT IN THE COURT, SHE COULD NOT HEAR PROPERLY AND PRESENT BEFORE THE COURT, AND IN THE RESULT, THE COMPLAINT was DISMISSED. IMMEDIATELY, ON THE SAME DAY, MEMO WAS FILED FOR RESTORATION. THE TRIAL COURT REJECTED THE REQUEST, REVISION WAS ALSO FILED before THE SESSIONS COURT IN CRI. R. P. NO. 91 OF 2000 AND THE SAME CAME to BE DISMISSED. THEREFORE, INVOKING THE INHERENT POWER, THE PRESENT petition IS FILED.

(3.) ON GOING THROUGH THE MATERIAL, I FIND THAT THE MAGISTRATE HAS POWER TO DISMISS THE COMPLAINT, IF THE COMPLAINANT IS ABSENT AND AT THE SAME TIME, THE DISMISSAL ORDER IS PASSED, THE COURT BECOMES FUNCTUS OFFTCIO AND MAGISTRATE HAS NO JURISDICTION TO RECALL HIS ORDER. IN THAT VIEW OF THE MATTER, THE DISMISSAL OF THE MEMO FOR RECALLING OF THE ORDER IS ALSO JUSTIFIED. ON ACCOUNT OF THE ABSENCE OF THE COMPLAINANT WHEN THE COMPLAINT, IS DISMISSED, THERE IS NO ILLEGALITY IN THE ORDER OF THE MAGISTRATE. ACCORDINGLY, THERE CAN BE NO INTERFERENCE WITH SUCH ORDER IN REVISION. BUT, NONETHELESS, UNDER INHERENT POWER, THIS COURT CAN LOOK INTO THE MATTER AND IF THE PARTY WAS NOT PRESENT BEFORE THE COURT FOR JUSTIFIABLE reason THIS COURT CAN EXAMINE THE CAUSE AND GRANT EQUITABLE RELIEF. IN the INSTANT CASE, THE REASONS STATED ARE CORROBORATED BY THE MEMO, which IS FILED ON THE SAME DAY. THEREFORE, I DO NOT FIND ANY MALA FIDES IN the SUBMISSION MADE BY THE PETITIONER. UNLIKE, THE PRIVATE COMPLAINT IN respect OF THE OTHER OFFENCES, THE PARTY PROSECUTING THE PRIVATE COMPLAINT for AN OFFENCE UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT cannot FILE SECOND COMPLAINT, IN VIEW OF THE PROVISIONS OF LIMITATION coming IN THE WAY. THEREFORE, IN ORDER TO SECURE ENDS OF JUSTICE, IT IS JUST and PROPER THAT THE COMPLAINT DISMISSED FOR DEFAULT BE RESTORED AND THE petitioner BE GIVEN ONE MORE OPPORTUNITY TO PROCEED WITH THE CASE.