Complaint u/s 138
C. P. CHUGH
(Querist) 02 September 2013
This query is : Resolved
Dear All
What are remedies available to a complainant whose complaint u/s 138 has been dismissed for non-appearance.
Thanks
Raj Kumar Makkad
(Expert) 02 September 2013
There is no scope for the restoration of the complaint but suit for recovery can definitely be filed.
In Bindeshwari Prasad Singh v. Kali Singh , AIR 1977 SC 2432, it has been held by the apex court as follows (headnote) :
"There is no provision in the Criminal Procedure Code empowering a Magistrate to review or recall a judicial order passed by him. Inherent powers under Section 561A are only given to the High Court and unlike Section 151 of the Criminal Procedure Code, subordinate criminal courts have no inherent powers."
The apex court again in Maj. Genl. A.S. Gauraya v. S. N. Thakur, AIR 1986 SC 1440, 1442, has held as under (headnote) :
"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, to restore the case. A second complaint is permissible in law if it could be brought within the limitations imposed by the Supreme Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 ; [1962] 1 Crl. LJ 770. Filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal Procedure Code does not contain any provision enabling the criminal court to exercise such an inherent power. Also, what the court has to see is not whether the Code 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."
C. P. CHUGH
(Querist) 03 September 2013
Thanks
Makkar Ji, but suit for recovery can not be filed now because of limitation. The Cheque in question was dated Aug 2008. What else are option please.
Thanks once again for taking pain.
Advocate Ravinder
(Expert) 05 September 2013
Makkad sir, kindly clarify whether suit for recovery of money is possible in this situation. Whether the pendency of the 138 case will save the limitation of 3 years to file recovery of money suit.
Anirudh
(Expert) 05 September 2013
When Mr. Makkad said that "There is no scope for the restoration of the complaint but suit for recovery can definitely be filed", he must be under the impression that there is some time left for filing the suit.
When the facts are otherwise, as pointed out by Mr. C.P.Chugh a day ago, I don't think Mr. Ravinder has any sound basis to seek clarification from Mr. Makkad.
Advocate Ravinder
(Expert) 06 September 2013
Since there is contradiction between Chugh and Makkad sir, I sought clarification.
C. P. CHUGH
(Querist) 06 September 2013
Dear Xperts,
Thanks for your valuable guidance. What Mr Raj Makkad stated in his reply was based on information provided to him. Facts were later updated and modified. More over we should understand that Xperts are sharing their knowledge and providing guidance. I feel none has a reason to ask clarification of others views. He is not bound by the guidance or views expressed by such Xpert.
Any how, Thanks all for contributing.
prabhakar singh
(Expert) 06 September 2013
First of all the opinion of Mr.makkad is sound and flawless and well understood by Mr. Chug who asked the query.
So far Mr. Ravinder.P query is concerned,it is clarified that complaint proceedings under section 138 N.I.Act is concerned,the same is criminal in nature and a civil suit can go side by side,SO THERE WOULD BE NO CASE OF EXEMPTION IN CIVIL SUIT FOR TIME CONSUMED IN PROCEEDINGS UNDER SECTION 138 N.I.Act,as the two are quite independent proceedings,there is no question of bonafide mistake of jurisdiction to be sought condoned under section 14 for which Mr.Ravinder.P is perhaps laboring.
prabhakar singh
(Expert) 06 September 2013
@ Dr. Jyothi Vishwanath !
Mr. C. P. CHUGH has already clarified that matter relates to august 2008 and suit,if thought of, would be hit by limitation.
So no remedy left now through court.
Advocate Ravinder
(Expert) 08 September 2013
I don’t have much knowledge in criminal side, hence my curiosity is to know whether the period consumed in criminal case can save the limitation of civil case. I could not get proper reply from the experts, atlast Prabhakar singh sir had clarified the doubt.
I don’t thing seeking clarification is wrong, as this is a site meant for debating upon a subject and also meant for expressing various views form all experts. Infact, I am fan of Makkad Sir and Prabhakar Singh sir and respect them as they are not only elder than me but also more experienced than me.
V R SHROFF
(Expert) 08 September 2013
Proceeding in criminal court does not extend Limitation period to sue in civil court. So that opportunity is LOST.
However, Dismissal is Order. If it is recently dismissed, as a last resort, justify the absence of Complainant, by moving application to set aside the order of lower court, though I am reserved to suggest so, if higher court consider it, it is your luck. Chances are rare, and depends upon the justification for long absence.
Order of aquittal of accused is appealable order, [not by sessions, but by High Court]
C. P. CHUGH
(Querist) 09 September 2013
Dismissal was after giving sufficient opportunity to complainant. He failed to turn up on 3-4 hearings despite service of notice.
So it appears, the matter is closed.
Thanks to all for contributing.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 09 September 2013
At first sight it was the impression that the query is posted on behalf of complainant but your last input shows it is on behalf of the accused.
1) The citation given by Shri Makkad shows that same court can not revise its own order.
2) Even otherwise the earlier landmark citation of SC in ADALAT PRASAD is being followed and it is good law as to date.
3) However dismissal of complaint u/s 138 will be governed by special provisions under this law and so HIGH COURT can restore the case.
DETAILED REASONS ARE GIVEN BY KARNATAKA HIGH COURT IN RECENT CASE., REF-CR APPEAL 1343 OF 2012 DECIDED ON 24.04.2013.
V R SHROFF
(Expert) 09 September 2013
I too Agree with Ad Defense, that HIGH COURT can restore this case.
I too thought Adv. Chugh need help for 138 Complainant, and hinted him HC Appeal, keeping Compl interest in mind.
Here in this case, he have to only Wait and watch the action of accused. Till then Relax .
