PANKAJ KUMAR Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) BY way of this Criminal Miscellaneous Application, the applicant has challenged the judgment and order dated 16.11.2006, passed by the learned Sessions Judge, Haridwar in Criminal Revision No. 132/2006, Pankaj Kumar v. Sharif Ahmad. In the said revision, the order of cognizance dated 2.12.2005, passed by the learned Magistrate in Criminal Complaint Case No. 468/2005, has been upheld.

(2.) THE background facts of the case are that respondent no. 2 Sharif Ahmad filed a complaint case no. 468/2005 against the applicant Pankaj Kumar for the offence of Section 138 of the Negotiable Instruments Act read with Section 420 IPC. The said complaint was filed before the Judicial Magistrate, Laksar, District Haridwar. The case was pending in the said court for adducing evidence by the complainant, but the complainant did not turn up on the date fixed i.e. on 7.10.2005. He also absented himself on the prior two consecutive dates before posting the case for producing the evidence. The accused applicant also remained absent. In the circumstances, the learned Magistrate, after recording the absence of the complainant as well as the accused, dismissed the complaint case and acquitted the accused by exercising his powers contained under Section 256 CrPC.

(3.) LEARNED Counsel for the applicant raised a legal question by contending that when the Magistrate recorded the finding of acquittal and dismissed the complaint, then second complaint with same set of facts and relating to same offence was not maintainable. He relied upon a precedent of the Hon'ble Apex Court rendered in case of Ranvir Singh v. State of Haryana & Another reported in (2010) 1 SCC (Cri) 96, wherein a similar controversy as to whether such a second complaint would be maintainable when the earlier one had not been dismissed on merits, but for the failure of the complainant to put in the process fees for effecting service came up for adjudication before the Hon'ble Apex Court. While deciding the said controversy, the Apex Court at paragraph 26 has held as under: