VINAYKUMAR Vs. RAMESH

JUDGEMENT

(1.) BY this common judgment both the applications are being disposed of together. The applicant had filed two private complaint cases for offence punishable Under S.138 of the Negotiable Instruments Act. The complaint cases were registered as SCC No. 3195/98 and SCC No. 3197/98. They were posted for hearing on 24/02/2003. When the Criminal cases were called out, the complainant was found absent and hence, order of dismissal was passed. The learned C. J. M. discharged the accused/respondent for want of prosecution. It appears that in the latter part of the day, advocate for the complainant submitted an application to recall the order of dismissal on the ground that the complainant/applicant had gone out of station for urgent personal work and the application could not be submitted well in time due to rush of work.

(2.) THE Respondent objected the application on the ground that absence of the complainant was unjustified. The objection raised further was that the Criminal Court had no power to restore the complaint cases by reviewing its own order of dismissal. The learned Chief Judicial Magistrate, Nanded considered arguments at Bar and the tenor of case law cited by the parties. The applications submitted by the complainant were rejected by order dated 05/02/2003.

(3.) MR . Sharma, learned advocate for the applicant, would submit that the complainant could not be thrown out of the Court due to single default in appearance on the date of hearing. He would point out that the application to recall the order of dismissal was submitted on the same day during later part of the working hours. He would further submit that the order of dismissal could be revised, on showing appropriate cause, by the Court of Sessions. He contended that the learned Sessions Judge ought not to have dismissed the Revision Petitions only for the reason that they are not maintainable. According to Mr. Sharma, the Revision Petitions are maintainable though the Magistrate may not have inherent power to review his order of dismissal and to restore the case. He seeks to rely on Mahendra Indermal Borana v. Anil Shankar Joshi and Another, 2004 (1) Bombay Cases Reporter (Cri.) 805. As against this, Mrs. Patil, learned advocate appearing for the Respondent seeks to rely on Maj. Genl. A. S. Gauraya and Another v. S. N. Thakur and Another, 1986 Cri. LJ 1074 (1986 KHC 790 : 1986 (2) SCC 709 : 1986 SCC (Cri) 249 : AIR 1986 SC 1440). She also heavily relied on Om Gayatri & Co. and Others v. State of Maharashtra and Another, 2006 Cri. LJ 601.