Gauhati High Court
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GAHC010006912014
2025:GAU-AS:313
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./155/2014
FARMUD ALI AHMED
S/O DAULAT ALI NIZ PAKOWA, P.O. PAKOWA, P.S. BELSOR, DIST. NALBARI,
ASSAM.
VERSUS
HOUSING AND URBAN DEVELOPMENT CORPORATION LTD. and ANR
HAVING ITS REGISTERED OFFICE AT HUDCO BHAWAN, INDIA HABITAT
CENTRE, LODHI ROAD, NEW DELHI-3, AND ITS ZONAL OFFICE, NORTH
EAST AT R.G. BARUAH ROAD, GANESHGURI, GUWAHATI-5.
2:THE STATE OF ASSA
Advocate for the Petitioner : MR.B DEKA, MR.K K BHUYAN,MR.D K KOTHARI
Advocate for the Respondent : MRU SARMA, MR.N BARUA,PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
Date : 07.01.2025
1. Heard Mr. B Deka, learned counsel for the petitioner. None
appears for the respondent No.1, Housing and Urban Development
Corporation Ltd.
2. The present application is filed under section 482 Cr.P.C., assailing
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an order dated 03.08.2007, whereby, the petition No.2210/2007,
filed on behalf of the complainant with a prayer to restore the
complaint case which was dismissed by an order dated 03.08.2007,
was allowed.
3. The brief facts of the case is that the respondent No.1 had filed a
complaint case before the court of Chief Juducial Magistrate,
Kamrup at Guwahati under section 138 of the NI Act, 1881 alleging
that the petitioner had certain lawful dues towards the respondent
No.1 and in discharge of such lawful due, a cheque amounting to
Rs.2,341/- was issued and the same was dishounoured.
4. On the basis of the aforesaid complaint, CR case No.2491/2005
was registered. On receipt of summons, the present petitioner as
accused entered appearance before the learned trial court and
while the matter was proceeding on 03.08.2007, the leaned trial
court dismissed the aforesaid case for the reason that the
complainant was absent without steps on 03.08.2007 as well as,
the complainant was absent without steps on the last occasion
also. Thus, the aforesaid complaint was dismissed for non
prosecution by an order dated 03.08.2007. Thus, on dismissal of
the complaint petition for all necessary purport, the accused was
acquitted.
5. Subsequently, on the same date the learned counsel for the
complainant filed a petition registered as Pet No.2210/2007, citing
certain reason with a prayer to restore the case, inasmuch as, it
was the case of the counsel for the complainant that the learned
counsel had wrongly written down the date of the case as
08.08.2007 in his diary instead of 03.08.2007.
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6. On the basis of the aforesaid explanation and relying on the
decision of the Hon'ble Apex Court in the case of Mohd. Azeem Vs.
A Venkatesh & Anr reported in reported in (2002) 7 SCC 726, the
learned Magistrate restored the petition.
7. The learned counsel for the petitioner, referring to the decision of
the Coordinate Bench in Santosh Kr. Keyal Vs. Durga Dutta
Biswanath (M/S) & others, reported in 2013 (4) GLT 531 submits
that this court in Santosh Kr. Keyal (supra) has already dealt
with the decision rendered in Mohd. Azeem (supra) and laid down
the principle that the Magistrate lacks power to review its own
order, inasmuch as, once the accused is acquitted, the Magistrate
shall have no power to restore a complaint.
8. This court has perused the judgment rendered by the Hon'ble
Apex court in Md. Azeem as well as in Santosh Kr. Keyal (supra).
In Santosh Kr. Keyal (supra), the Coordinate Bench dealt with the
determination made in Mohd. Azeem, in the said case a complaint
petition was restored after dismissal for default on the ground that
the learned Magistrate had committed an error.
9. In Md. Azeem it was not a case that Magistrate itself restored the
complainant after dismissal, rather it was the complainant who
preferred an appeal before the high court against order of dismissal
which was dismissed by the High Court and then only, the
complainant approached the hon'ble Apex Court and the hon'ble
Apex Court observed that the high court and the learned trial court
ignored the valid ground shown by the complainant for restoration
of the complaint.
10. Therefore, the principle laid down in Mohd. Azeem, in the
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considered opinion of this court shall not be applicable in this case
inasmuch as, in the present case, the issue arises is whether a
Magistrate shall have power to recall its order after dismissal of a
complaint for non prosecution and resultant acquittal.
11. This court is in total agreement with the ratio laid down by the
coordinate bench in Santosh Kr. Keyal (supra), wherein it was
held that Magistrate lacks power to recall its own order after
dismissal of the petition. This court is also of the view that the
complainant has the remedy of preferring an appeal against such
dismissal and acquittal of the accused, which was done in Mohd.
Azeem (supra). Therefore, in the considered opinion of this
court, the learned Magistrate had misdirected itself by relying on
the decision of the hon'ble Apex court in Mohd. Azeem.
12. Accordingly, in view of the determination made hereinabove, this
court is of the view that the learned Magistrate had recalled the
earlier order dated 03.08.2007 and restored the complaint to its file
without having any jurisdiction.
13. Accordingly, the order dated 03.08.2007 recalling the dismissal
order and restoring the complaint to its original record stands set
aside and quashed.
JUDGE
Comparing Assistant
