Mrs. Sabina, J.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 Honble Supreme Court in (1986) 2 Supreme Court Cases 709 [LQ/SC/1986/154] 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."

4. Learned counsel has next placed reliance 2009 SCC Online P & H 4894, Krishan Lal v. Sangeeta Aggarwal, wherein it was held as under.

"I have heard learned counsel for the parties and perused the order dated 23.10.2006, whereby the Chief Judicial Magistrate recalled his order dated 16.12.2005 and restored the complaint to its original stage. The Code of Criminal Procedure does not confer any power to review/recall an order. The only situation, in which a court may legitimately alter its order is, where it proposes to correct clerical and/or arithmetical errors. A complaint, once dismissed for failure of the complainant to put in appearance, therefore, cannot be restored. The question, whether the Magistrate was empowered to dismiss the complaint in default for non-appearance, is a matter apart and can be legitimately agitated in appropriate proceedings. It is, therefore, apparent that the learned Chief Judicial Magistrate had no jurisdiction to pass the order dated 23.10.2006."

5. Respondent No. 2 on the other has opposed the petition and has submitted that the Magistrate had rightly ordered the restoration of the complaint. Counsel for the complainant could not appear before the trial Court as his mother-in-law had fallen sick on 03.02.2015 and had later died. One of the relatives of the assisting counsel had died and due to this reason he could not persue the case.

6. In support of her arguments learned Counsel for the respondent No. 2 has placed reliance on the decision of Honble Supreme Court in Criminal Appeal No. 2226 of 2011, Arising out of S.L.P. (Criminal) No. 5305 of 2008 titled as Punjab State Warehousing Corporation Faridkot v. M/s Sh. Durga Ji Traders & others, decided on 28.11.2011, wherein it was held as under:-

"Undoubtedly, the Trial Court had dismissed the complaint on a technical ground and therefore, interests of justice required the High Court to exercise its jurisdiction to set aside such an order so that the Trial Court could proceed with the trial on merits. Resultantly, the appeal is allowed. The impugned judgment as also the orders of the Chief Judicial Magistrate dated 18th February 2003 and 9th November 2005 are set aside and the complaint filed by the appellant is restored to the file of the Chief Judicial Magistrate. The Chief Judicial Magistrate shall now proceed with the trial after securing the presence of the accused."

7. Learned counsel for the respondent No. 2 has next placed reliance on the decision of Honble Supreme Court in Criminal Appeal No. 839 of 2002 Mohd. Azeem v. a. Venkatesh and another, wherein it was held as under:-

"3. From the contents of the impugned Order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his appearance on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complaint.

In our opinion, the learned Magistrate , and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant."

8. In the present case, complaint was filed by respondent No. 2 against the petitioner and others under Section 138 of the Act. On 04.03.2015 the complaint filed by the petitioner was dismissed for want of prosecution. A perusal of the order reveals that for the last three dates complainant had not been appearing, nor the counsel for the complainant had appeared. Necessary fee for summoning the respondent had also not been deposited. In these circumstances, left with no option learned trial Court dismissed the complaint for want of prosecution. It is settled law that the Magistrate has no power to restore the complaint. In the absence of any specific provision in the code, a Magistrate can not exercise any inherent jurisdiction. The judgments relied upon by the learned counsel for the respondent No. 2 fail to advance the case of the complainant as they were based on their own facts. In the decision given by the Honble Apex Court in Mohd. Azeem case supra, Honble Apex Court was dealing with an order passed by the High Court in an appeal.

9. In the present case petitioner (complainant) as well as his counsel had failed to appear before the Court on three occasions as is evident from the order dated 04.03.2015. Relevant process fee had also not been deposited. Consequently, the complaint was liable to be dismissed for want of prosecution. In the facts and circumstances of the present case, the trial Court had no option but to dismiss the complaint for want of prosecution. There was no explanation as to why the complainant had failed to appear on the three dates preceding 04.03.2015.

10. Accordingly, this petition is allowed. Impugned order dated 15.03.2016 is set aside. However, respondent No. 2 would be at liberty to take appropriate remedy available to it as per law, if so advised.