ROZY MERCANTILE LTD Vs. SUS STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE submissions of the learned Counsel appearing for the parties were heard on the last date. THE Applicants have filed this Application under Section 482 of the Code of Criminal Procedure, 1973 taking exception to the Judgment and Order dated 10th October 2003 passed by the learned Additional Chief Metropolitan Magistrate, 6th Court at Mazgaon, Mumbai. THE Second Respondent is the complainant in a complaint filed under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881. THE Applicants are arraigned as accused in the said complaint. In the said complaint, the learned Magistrate issued process. THE learned Magistrate passed an order in the said complaint on 14th May 1999 under Section 256 of the said Code on the ground that the second Respondent was absent and no steps were taken for effecting service to the accused persons. By the said order the complaint was dismissed and the accused was acquitted. THEreafter, an Application was moved by the second Respondent for restoration of the complaint. By order dated 10th October 2003, the learned Trial Judge allowed the said Application and passed an order of restoration of the complaint.

(2.) THE learned Senior Counsel appearing for the Applicants submitted that the learned Magistrate had no jurisdiction to restore the complaint which was dismissed under Section 256 of the said Code. He submitted that the order under Section 256 of the said Code had effect of acquittal of the accused and therefore, the only remedy available for the second Respondent was to file an Appeal against Acquittal. He placed reliance on the decision of the apex Court in the case of Major General A.S. Gauraya and another Vs. S.N. Thakur and another (1986 (2) Supreme Court Cases 709) and submitted that once a complaint was dismissed for non-prosecution, the learned Magistrate had no jurisdiction to restore and revive the dismissed complaint. He submitted that as there was a complete lack of jurisdiction in the learned Magistrate, this is a fit case for exercising power under Section 482 of the said Code.

(3.) IT will be necessary to advert to the facts of this case. On the restoration application filed by the second Respondent, an order was made by the learned magistrate on 10th October 2003 restoring the complaint. On 31st December 2003, the learned Magistrate passed an order on the complaint directing issuance of notice to the Petitioners. Thereafter, the Petitioners appeared in the complaint and on 1st July 2004, plea of the Petitioners was recorded. On 1st October 2004, an affidavit of examination-in-chief was filed by the Second Respondent. On 22nd December 2004, an Application was made on behalf of the Petitioners seeking a direction against the complainant to lead oral evidence. On 22nd December 2004, the recording of examination-in-chief of the first witness of the second Respondent was commenced and was completed on 3rd February 2005. On the same day, the cross examination of the said witness by the Advocate for the Petitioners was started. The cross examination continued on 16th February 2005, 5th March 2005, 20th April 2005, 21st April 2005, 27th April 2005 and 18th June 2005. As stated earlier, this application was filed in this Court on 9th August 2005. In paragraph No.3 of the Application, it is asserted that while perusing certified copies obtained by the Applicants' Advocate in July 2004, the Applicants became aware about the order of restoration passed by the learned Magistrate. After July 2004, the Applicants participated in the proceeding before the learned Magistrate from time to time till 18th June 2005 without making any grievance about the earlier order passed by the learned Magistrate. Only after cross examining the first witness of the second Respondent on seven consecutive dates that the present Application has been filed. In my view, considering the said conduct of the Applicants, this is not a fit case where inherent power under Section 482 of the said Code should be exercised.