TOM ALEX Vs. THODUPUZHA GENERAL MARKETING SOCY LTD
HIGH COURT OF KERALA
THODUPUZHA GENERAL MARKETING SOCY. LTD.
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(1.) Petitioner was the accused in C. C. No. 109 of 1999, on the file of the Chief Judicial Magistrate Court, Thodupuzha, in a private complaint filed under S.138 of the Negotiable Instruments Act. The case was called on 22nd December 2000. On that day, the complainant or his Counsel was not present. Therefore, accused was acquitted under S.256 of the Criminal Procedure Code. S.256 of the Cr. P. C. reads as follows:
"256. Non appearance or death of complainant. (1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not
appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
(2) The provisions of sub-section (1) shall, So far as may be, apply also to cases where the non appearance of the complainant is due to his death."
The first respondent / complainant filed another petition for reopening the case. The petitioner / accused did not make any objection. Therefore, the Magistrate allowed the petition and the matter was reopened.
(2.) There is no provision in the Criminal Procedure Code authorising the Magistrate to review the Judgment passed by him, except correcting the clerical or arithmetical error. S.362 of Cr. P. C. makes the matter clear. S.362 reads as follows:
"362. Court not to alter Judgment: - Save as otherwise provided by this Code or by any other law for the time being in force, no Court when it has signed its Judgment or final Order disposing of a case shall alter or review the Same except to correct a clerical or arithmetical error."
The Supreme Court in Hari Singh Mann v. Harbhajan Singh Bajwa and
others AIR 2001 SC 43 held that even the High Court by using S.482 cannot review the Judgments in criminal cases once passed. Therefore, whether there is objection or not the Magistrate after acquitting the accused cannot review the Judgment and take the case on file. Appropriate remedy for the complainant was to file a revision or appeal, as the case may be, in this case, we note that no objection was raised by the accused. Since the matter was pending before the court and the Magistrate entertaired the same, the time from 23rd December 2000 till today shall be excluded in computing the time for filing appeal or revision, as the case may be.
With the above observation, this petition is dismissed.;
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