Sabina, J. - (1.) Petitioner has filed this petition under Section 482 Code of Criminal Procedure, 1973 challenging the order dated 15.03.2016 whereby the complaint filed by respondent No. 2 under Section 138 of the Negotiable Instruments Act, 1881 was ordered to be restored.
(2.) Learned counsel for the petitioner has submitted that the respondent No. 2 had filed a complaint with regard to dishonour of cheques dated 24.12.2011 and 25.01.2012. Complaint filed by the complainant was dismissed vide order dated 04.03.2015 for want of prosecution. Respondent No. 2 moved an application for restoration of the criminal complaint. Vide impugned order dated 15.03.2016 trial court restored the complaint to its original number. Since, in the present case, the complaint was to be tried as a summons case by the trial court, the same could not have been restored by the trial Court. The only remedy available to the respondent No. 2 was to file an appeal challenging the order dated 04.03.2015, as it amounted to acquittal of the accused. Complaint itself was not maintainable as the Company had not been impleaded as an accused. So far as the petitioner is concerned, he was neither the Director of the Company nor had signed the cheque in question.
(3.) Learned counsel has placed reliance on the decision of Hon'ble Supreme Court in (1986) 2 Supreme Court Cases 709 Maj. Genl. A.S. Gauraya and another v. S.N. Thakur and another , wherein it was held as under:- We would like to point out that this approach is wrong. What the Court has to see is not whether the Code of Criminal procedure contains any provision prohibiting a Magistrate from entertaining an application to restore a dismissed complaint, but the task should be to find out whether the said Code contains any provision enabling a Magistrate to exercise an inherent jurisdiction which he otherwise does not have. It was relying upon this decision that the Delhi High Court in this case directed the Magistrate to re-call the order of dismissal of the complaint. The Delhi High Court referred to various decisions dealing with section 367 (old code) of the Criminal Procedure Code as to what should be the contents of a Judgment. In our view, the entire discussion is misplaced. So far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction.;