C482/862/2009 of ROSHAN PUNDIR Vs RAJENDRA SINGH

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL-Criminal Misc. Application (C482) No. 862 of 2009

Roshan Pundir ……. Applicant versus

Rajendra Singh ……. Respondent

Mr. D.C.S. Rawat, Advocate for the applicant.None present for therespondent.

U.C. Dhyani, J.(Oral)

The applicant, by means of present application / petition under Section 482 of Cr.P.C., seeks to quash the order dated 17.08.2009 as well as the proceedings of criminal case no. 4070 of 2009, Rajendra Singh vs Roshan Pundir, under Section 138 of the Negotiable Instruments Act, pending in the Court of Judicial Magistrate, Rishikesh, District Dehradun.

2) criminal complaint case under Section 138 of the Negotiable Instruments Act, 1881 was filed by Rajendra Singh against Roshan Pundir. This fact is under no dispute that in the absence of the complainant, the complaint under Section 138 of the Negotiable Instruments Act was dismissed for want of prosecution on 12.08.2009. Thereafter, the complainant approached the court of Judicial Magistrate, Rishikesh with the prayer to set aside the order dated 12.08.2009 and restore the criminal complaint case to its original number, on the ground that he could not appear before

the court, in as much as he was seriously ill and could not contact his counsel. Learned Magistrate, vide order dated 17.08.2009, found the ground shown by the complainant for his absence to be sufficient and set aside the order dated 12.08.2009, as result thereof, the criminal complaint was restored to its original number.

3) None appeared for the respondent despite service of notice upon him. Registry has made an endorsement on 16.12.2009 that notice was served upon the respondent through his counsel in the court below.

4) It is settled law that complaint, once dismissed in default of the complainant, cannot be restored to its original number. Filing of fresh complaint is the only remedy, if it is otherwise admissible. The complainant in the instant case has sufficiently shown that he was seriously ill and could not contact his counsel and, therefore, after considering the sufficiency of the reason, learned Judicial Magistrate set aside the order dated 12.08.2009 and restored the criminal complaint under Section 138 of the Negotiable Instruments Act to its original number, which is not permissible in law in view of principle of law laid down by the Hon’ble Supreme Court in Everest Advertising (P) Ltd. vs State, Govt. of NCT of Delhi and others, (2007) 5 SCC 54; Adalat Prasad vs Rooplal Jindal, (2004) 7 SCC 338 : 2004 SCC (Cri) 1927; Subramanium Sethuraman vs State of

Maharashtra, (2004) 13 SCC 324 : 2005 SCC (Cri) 242 and N.K. Sharma vs Abhimanyu, (2005) 13 SCC 213 : (2006) 2 SCC (Cri) 135. In Everest Advertising (P) Ltd. (supra), summons were issued by the learned Magistrate by reason of an order dated 24.07.1999. He recalled the said order. Hon’ble Supreme Court has held that he did not have any jurisdiction in that behalf. Magistrate does not have and, thus, cannot exercise any inherent jurisdiction.

5) In view of the above, the application under Section 482 of Cr.P.C. is, accordingly, allowed. Impugned order dated 17.08.2009, passed by the Judicial Magistrate, Rishikesh, District Dehradun in criminal case no. 4070 of 2009, Rajendra Singh vs Roshan Pundir, under Section 138 of the Negotiable Instruments Act as well as the proceedings of aforesaid criminal complaint case are hereby set aside. It is made clear that this order will not stop the complainant from filing fresh criminal complaint under Section 138 of the Negotiable Instruments Act against the accused-applicant, as per law.

(U.C. Dhyani, J.)