Rakesh Sharma vs Pramod Sharma
2022 Latest Caselaw 6406 MP

Citation : 2022 Latest Caselaw 6406 MP
Judgement Date : 28 April, 2022

Madhya Pradesh High Court

Rakesh Sharma vs Pramod Sharma on 28 April, 2022

Author: Deepak Kumar Agarwal

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              HIGH COURT OF MADHYA PRADESH
                         MCRC-9902/2017
                 (Ramesh Sharma Vs Pramod Sharma)

Gwalior, Dated: 28.4.2022
      Shri Shivkumar Yadav, learned counsel for the petitioner.

      Shri Upendra Yadav, learned counsel for the respondent.

This petition has been filed under Section 482 of Cr.P.C. by the

petitioner being aggrieved by order of Sessions Judge, Gwalior, in

Criminal Revision No.189/2017 on 1.6.2017 by which he has affirmed

the order of Judicial Magistrate First Class, Gwalior, in Criminal Case

No.2089/2014 on 24.7.2015.

Brief facts of the case necessary for disposal of this petition are

that petitioner has filed a complaint under Section 138 of the Negotiable

Instruments Act before the competent Court. After registration of the

complaint, case is fixed for 24.4.2014 for paying process fee. Thereafter

on 24.7.2015 his complaint was dismissed due to absence of the

petitioner and non-payment of process fee for issuance of notice to the

respondent. Petitioner thereafter filed an application on 15.1.2016 for

restoration of his complaint which was dismissed by order dated

22.2.2016 on the ground that Court is having no jurisdiction to review

its own order. Without assailing the original order of dismissal of

complaint dated 24.7.2015, petitioner filed a revision being aggrieved by

order dated 22.2.2016 by which his application for restoration of

complaint has been dismissed. Revisional Court dismissed his revision

on the ground that there is no provision in the Cr.P.C. for restoration of a

complaint which was dismissed for non- appearance of the petitioner

and non-payment of process fee. Being aggrieved by the aforesaid

orders, petitioner has filed this petition.

Heard learned counsel for the parties and perused the record.

On going through the complaint filed by the petitioner before the

Judicial Magistrate First Class, Gwalior, prima facie it appears that

respondent had issued a cheque of Rs.2,50,000/- in favour of the

petitioner which was dishonoured. After giving notice as prescribed

under the Act, he filed a complaint which was dismissed due to his non-

appearance and non-payment of process fee on 24.7.2015. It is true that

there is no provision in the Cr.P.C. for restoration of a complaint, but if

complainant will not get a chance to contest his complaint, he will suffer

irreparable loss because cheque is of Rs.2,50,000/- issued in the year

2013.

The Delhi High Court in Ambassador Cards Pvt. Ltd. Vs. State

& Anr., 2009 (1) DCR 91 has held as under :-

"Having heard learned counsel for the parties and taking into consideration that great prejudice shall be caused to the complainant-appellant if his complaint goes undefended, particularly when the amount involved in this case is about Rs.4,27,272/-, therefore, in the interest of justice the appeal is allowed, resulting in restoration of the complaint to its original number and position."

The Punjab & Haryana High Court in the case of Nambhi Raj vs.

Adarsh Diwan, 2004(2) DCR 268 where petition under Section 482 of

Cr.P.C. has been filed for quashing order dated 13.11.2000 passed by the

Judicial Magistrate First Class restoring the complaint of the respondent

to its original number and the order dated 24.9.2000 passed by the ASJ

upholding the order of restoration of the Magistrate, has held as under:-

"After hearing the learned counsel and perusing the aforementioned judgments, I am of the considered view that the order dated 13.11.2000 passed by the Magistrate restoring the complaint has been upheld by the Additional Sessions Judge and it shall now be deemed that the order dismissing the complaint passed on 4.10.2000 has been set aside by the Additional Sessions Judge. Therefore, it would be extreme technicality that no revision was filed by the complainant and the Magistrate has no jurisdiction to restore the complaint. Moreover, the second revision by the petitioner would not be competent by invoking Section 482 Cr.P.C. Therefore, there is no ground to interfere and the petition is liable to be dismissed."

In view of the aforesaid, in the interest of justice, by invoking

inherent powers of this Court under Section 482 of Cr.P.C. this Court

deems it fit to allow this petition. Accordingly, this petition is allowed.