YOGESH BABULAL SHAH Vs. K S BHASIN

JUDGEMENT

(1.) Heard Mr.B.A. Surti, learned counsel appearing for the petitioner and Mr.L.R. Pujari, ld.APP, appearing on behalf of the respondent-State. The present Revision Application is preferred against the order dated 08th April, 1994, passed by the ld.Chief Judicial Magistrate in Criminal Case No.2769 of 1990. The petitioner is the orig.complainant and his grievance is that the order passed by the ld.Chief Judicial Magistrate already under challenge is bad in law and while passing the order, the learned Judge has failed in exercising jurisdiction vested with the Court. The trial Court could have afforded opportunity and the petitioner ought to have been given time to prosecute his case.

(2.) The order under challenge is passed in a criminal case instituted on the strength of a private complaint. The complaint filed is for the offence punishable under Section 138 of the Negotiable Instruments' Act and Section 420 of the Indian Penal Code. But after recording verification, the ld.Chief Judicial Magistrate refused to issue process for the offence punishable under Section 420 of the Indian Penal Code and decided to proceed with the offence punishable under Section 138 of the Indian Penal Code. The said order is of 12th July, 1993. Thereafter, in the month of April when the matter was kept for recording evidence, the complainant was not found present and, therefore, the ld.Chief Judicial Magistrate decided to dismiss the complaint. The ld.Magistrate has recorded that the complainant was called time and again during the course of the day and practically when the Court hours were to over, the ld.Magistrate decided to dismiss the matter for want of prosecution and appropriate order was passed.

(3.) As per the settled legal position, the order passed by the ld.Chief Judicial Magistrate dismissing the complaint for want of prosecution and non-availability of complainant in a private complaint has an effect of acquittal.