- (1.) Leave granted.
(2.) This appeal, by special leave, arises from judgment dated 18 th February, 2008 rendered by a learned Single Judge of the High Court of Judicature for the States of Punjab and Haryana at Chandigarh. By the impugned judgment, the learned Single Judge has dismissed the petition preferred by the appellant under Section 482 of the Code of Criminal Procedure, 1973 (for short "the Code"), seeking quashing of orders dated 18 th February 2003, by which the Criminal Complaint filed against the respondents in this appeal, for having committed offences under Sections 406 and 409 of the Indian Penal Code, 1860 (for short "IPC") had been dismissed in default by the Chief Judicial 1Magistrate, Muktsar; and 9 th November 2005 by which the application for restoration of the said complaint was dismissed.
(3.) Succinctly put, the material facts giving rise to the present appeal are as follows: The appellant, a statutory body, constituted under the Warehousing Corporation Act, 1962, filed a private criminal complaint under Sections 406 and 409 of the IPC against the respondents, alleging shortage of huge quantity of rice in respect of paddy entrusted to them as miller. Simultaneously, an application for exemption from personal appearance of the complainant therein, was also filed, whereon the following order was passed by the Trial Court on 16 th April 1999. "In view of the application made by the complainant presence of complainant is exempted till further orders." The trial proceeded in the normal course for six years. However, on 18 th February 2003 the Chief Judicial Magistrate dismissed the case for non appearance of the complainant even though the pleader for the appellant was present in court. The order reads thus: "None is present on behalf of the complainant nor any request has been received on behalf of the complainant. Both the accused are present on bail. In view of the absence of the complainant, complaint stands dismissed in default. Be consigned to Record Room. Pronounced. Sd/- Chief Judicial Magistrate Muktsar At this stage an application for restoration of the complaint has been filed on the ground that personal appearance of the complainant was already exempted vide order dated 16.4.99. Copy supplied to the counsel for accused. However, let the notice to the accused regarding the application be given present in the court for 24.3.03. File be also produced on the date fixed. Sd/- CJM 18.2.03" The application for restoration of the complaint was ultimately dismissed on 9 th November 2005, by the following order: "After considering the arguments of the parties at length, I am considered of the view that complaint was dismissed in default. Complainant was already exempted from the personal appearance on 16.4.99 and thereafter he appeared in the court in person. The orders have become redundant and the complainant had to seek afresh exemption from appearance. From the perusal of the record, it appears that complainant has never moved any fresh application for exemption nor the same was ever allowed and as such the order of dismissal dated 19.2.03 has become final and counsel for the accused has referred the Apex Court judgments and I have gone through the same and find a force in the contention of the learned counsel for accused. There is no provision in Criminal Procedure Code to review the order and recall the summons. Hence, application moved by the applicant is hereby declined and accused are also discharged. File be consigned to the record room.";