- (1.) This criminal petition, filed under Section 482 Cr.P.C. read with Article 227 of the constitution of India, is directed against the order, dated 07.06.2012, passed by the learned Sub-Divisional Judicial Magistrate (Sadar), Sivasagar, in CR Case No. 158/2010, whereby the learned SDJM(S), while reviewing the order, dated 29.05.2012, passed by him, under Section 256 Cr.P.C., set aside the order of acquittal passed in favour of the accused person, hereinafter called the petitioner and restored the complaint aforesaid to file. I have heard Mr. K. Agarwal, learned Counsel, appearing for the petitioner and Mr. P.K. Sharma, learned Counsel, appearing for the respondents. The respondents, as complainant, filed a complaint case under Section 138 of the Negotiable Instrument Act, 1881 (In short, N.I. Act), against the petitioner and the learned SDJM, after taking cognizance of the offence under Section 138 of the N.I. Act, issued summons to the petitioner. On his appearance, the particulars of offence was explained on 21.01.2011, to which the petitioner pleaded not guilty and the case was posted for evidence. On 29.05.2012 i.e. the date fixed for evidence, the complainant i.e. the respondent was found absent without any steps and accordingly, the learned SDJM dismissed the complaint under 256 Cr.P.C. and acquitted the accused person. On 7.6.2012, the learned Counsel, appearing for the complainant, filed an application for restoration of the complaint to file and the learned SDJM, without issuing any notice to the petitioner, relying on the decision, held in the case of Mohd. Azeem Vs. A. Venkatesh & Anr., 2002 7 SCC 726, restored the complaint to file and issued notice to the accused person. Aggrieved by the said order of restoration, the accused person, as petitioner, has come up with this case. Mr. K. Agarwal, learned Counsel, appearing for the petitioner, has submitted that the learned SDJM, after passing the order of dismissal of the complaint, resulting acquittal of the accused, ceased to have any jurisdiction to review his own order and restore the complaint to file, inasmuch as he became functus officio. It is also submitted that the learned SDJM committed gross error and illegality by reviewing his own order without any authority of law and as such, the impugned order can not stand in the eye of law. In support of his contention, the learned Counsel, appearing for the petitioner, has relied on the following cases: (i) Maj. Genl. A.S. Gauraya & Anr. Vs. S.N. Thakur & Anr., 1986 2 SCC 709; (ii) S. Rama Krishna Vs. S. Rami Reddy (Dead) By His LRS. & Anr., 2008 5 SCC 535 and (iii) Parimal Chakraborty Vs. Ranjit Debnath & Ors., 2004 3 GauLT 213.
(2.) Mr. P.K. Sharma, learned Counsel, appearing for the respondents, referring to the decision, held in the case of Mohd. Azeem , has submitted that in view of the judgment and order, passed by the Supreme Court, in the said case, the learned SDJM committed no error by setting aside the order of dismissal of the complaint and restoring the same to file. It is also submitted that, as there is no provision of filing of second complaint, the respondent i.e. the complainant, had no other alternative but to approach the trial Court for restoration of the complaint to file and as such, the learned SDJM rightly restored the complaint to file. In support of his contention, the learned Counsel, appearing for the respondents, has relied on the case of Mohd. Azeem .
(3.) Having heard the learned Counsel, appearing for both the parties and considering the impugned orders, I find that the complaint case was fixed on 29.05.2012, for evidence. On the said date, the learned SDJM (S), Sivasagar, due to absence of the complainant, dismissed the case, under Section 256 Cr.P.C. and acquitted the complainant by passing the Mowing order: 29.05.12 Complainant absent and accused is present Fix. 7.7.12 fix evidence. Later on, Heard learned advocate for accused. It is submitted that inspite of the order dated 19.12.2011, the complainant is absent today without any steps and no further adjournment need be granted. Considering the submission so made and also in view of non-appearance of complainant the complaint is dismissed under Section 256 Cr.P.C. and accused is acquitted. The case is, thus, disposed of. Fix 1.2.12 for evidence. S/d illegible 29.5.12 Sub-Divisional Judicial Magistrate (Sadar) Sivasagar From the above order, there is no difficulty in understanding that the learned SDJM acquitted the accused person i.e. the petitioner, after dismissing the complaint for non-production of evidence, by the complainant. Subsequently, on 07.06.2012, i.e. after dismissal of the said case, the complainant filed a petition for restoration of the complaint to file and the learned SDJM, by passing the following order, restored the complaint to file 7.6.12 The complainant side has filed hazira and heard Ld. Advocate for complainant Sri S.K. Baruah on petition No. 1991/12 filed for restoration of this complaint to file. Considering all the relevant provisions of law. The Ld. Counsel for complainant has submitted that there is no legal bar in restoring such complaint to file and more so when the default is for one day only and it is settled that due to wrong entry of date fixed in advocate's record, steps could not be taken. In support of his plea, Ld. Counsel has placed reliance in the case of Mohd. Azeem Vs. A. Venkatesh and another, 2002 7 SCC 726 wherein the Hon'ble Apex Court in para 4, observed thus- In our opinion, the ld. Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the Ld. Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint whereas sufficient cause for absence was shown by the complainant. In view of the above observation, I am of the view that the present complaint needs to be restored to file which I accordingly do. The complaint stands restored to file. Issue notice to accused. Fix 21.6.12 for N/O. S/d illegible Sub-Divisional Judicial Magistrate (Sadar) Sivasagar From the said impugned order, it is found that the learned SDJM reviewed his earlier order of dismissal of the complaint and restored the same to file, that too without hearing the accused person, who was acquitted by the earlier order of dismissal. The said order is found to be passed on the basis of the observation, made in the case of Mohd. Azeem aforesaid.;