NAMBHI RAJ Vs. ADARSH DIWAN

JUDGEMENT

(1.) THIS petition filed under Section 482 of the Code of criminal Procedure, 1973 (for brevity, 'cr. P. C'.) prays for quashing order dated 13. 11. 2000 passed by Judicial Magistrate 1st Class, Gurgaon restoring the complaint of the respondent to its original number and the order dated 24. 9. 2000 passed by the Additional Sessions Judge upholding the aforesaid order of restoration of the Magistrate.

(2.) THE complainant-respondent filed a complaint under Section 138/ 142 of the Negotiable Instruments Act, 1881 and on account of non-appearance of the complainant, the complaint was dismissed on 4. 10. 2000. When the complainant filed an application for restoration of the complaint, the Magistrate accepted the application by relying upon a judgment of the Supreme court in the case of Associated Cement Co. Ltd. vs. Keshavanand, 1999 isj (Banking) 171 on the ground that the complaint was at the initial stage of summoning the accused-petitioner and the date was fixed for taking further steps towards progress of the complaint. It was further held that the magistrate was competent to issue process for the purposes of securing the presence of the accused-petitioner. Against the aforementioned order, the accused-petitioner filed Criminal Revision No. 10 of 17. 1. 2001 and the order passed by the Magistrate was upheld. The operative part of the order dated 24. 9. 2002 reads as under :

(3.) MR. B. S. Rana, learned counsel for the petitioner has argued that the magistrate did not enjoy inherent power to restore the complaint. In support of his submission the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Major General A. S. Gauraya and anr. vs. S. N. Thakur and another, 1988 (1) Recent Criminal Reports 3 and a judgment of this Court in the case of Karandeep Singh us. Jagdish Goyal, 1997 (4) RCR (Criminal) Reports 490 and argued that the order of dismissal of the complaint passed by the Magistrate on account of non-appearance was the final order and on revision having been filed against the aforementioned order by the complainant it was liable to be maintained and the magistrate did not have inherent jurisdiction.