He relied upon a precedent of the Hon'ble Apex Court rendered in case of Ranvir Singh v. State of Haryana & Another reported in (2010) 1 SCC (Cri) 96, wherein a similar controversy as to whether such a second complaint would be maintainable when the earlier one had not been dismissed on merits, but for the failure of the complainant to put in the process fees for effecting service came up for adjudication before the Hon'ble Apex Court. While deciding the said controversy, the Apex Court at paragraph 26 has held as under:
"The said situation is mainly covered by the decision of this Court in Jatinder Singh case, wherein the decision in Pramatha Nath Talukdar case was also taken into consideration and it was categorically observed 3
that in the absence of any provision in the Code barring a second complaint being filed on the same allegation, there would be no bar to a second complaint being filed on the same facts if the first complaint did not result in the conviction or acquittal or even discharge of the accused, and if the dismissal was not on merit but on account of a default on the part of the complainant."1
Uttaranchal High Court
Pankaj Kumar vs State Of Uttarakhand & Another on 11 October, 2011
By way of this Criminal Miscellaneous Application, the applicant has challenged the judgment and order dated 16.11.2006, passed by the learned Sessions Judge, Haridwar in Criminal Revision No. 132/2006, Pankaj Kumar v. Sharif Ahmad. In the said revision, the order of cognizance dated 2.12.2005, passed by the learned Magistrate in Criminal Complaint Case No. 468/2005, has been upheld.
2. The background facts of the case are that respondent no. 2 Sharif Ahmad filed a complaint case no. 468/2005 against the applicant Pankaj Kumar for the offence of Section 138 of the Negotiable Instruments Act read with Section 420 IPC. The said complaint was filed before the Judicial Magistrate, Laksar, District Haridwar. The case was pending in the said court for adducing evidence by the complainant, but the complainant did not turn up on the date fixed i.e. on 7.10.2005. He also absented himself on the prior two consecutive dates before posting the case for producing the evidence. The accused applicant also remained absent. In the circumstances, the learned Magistrate, after recording the absence of the complainant as well as the accused, dismissed 2
the complaint case and acquitted the accused by exercising his powers contained under Section 256 CrPC.
3. Being aggrieved, the complainant Sharif Ahmad filed a second complaint against the accused applicant on 11.11.2005 relating to the same offence with same set of facts. The learned Magistrate, after recording the statements under Section 200 and 202 CrPC, took cognizance of the offence against the applicant vide his order dated 2.12.2005. The accused applicant assailed this order before the learned Sessions Judge by filing a Criminal Revision No. 132/2006, which resulted in dismissal, and the order of cognizance was sustained. Hence, the accused applicant has filed this petition against the said judgment and order of the learned Sessions Judge passed on 16.11.2006.
4. Learned Counsel for the applicant raised a legal question by contending that when the Magistrate recorded the finding of acquittal and dismissed the complaint, then second complaint with same set of facts and relating to same offence was not maintainable. He relied upon a precedent of the Hon'ble Apex Court rendered in case of Ranvir Singh v. State of Haryana & Another reported in (2010) 1 SCC (Cri) 96, wherein a similar controversy as to whether such a second complaint would be maintainable when the earlier one had not been dismissed on merits, but for the failure of the complainant to put in the process fees for effecting service came up for adjudication before the Hon'ble Apex Court. While deciding the said controversy, the Apex Court at paragraph 26 has held as under:
"The said situation is mainly covered by the decision of this Court in Jatinder Singh case, wherein the decision in Pramatha Nath Talukdar case was also taken into consideration and it was categorically observed 3
that in the absence of any provision in the Code barring a second complaint being filed on the same allegation, there would be no bar to a second complaint being filed on the same facts if the first complaint did not result in the conviction or acquittal or even discharge of the accused, and if the dismissal was not on merit but on account of a default on the part of the complainant."
5. It is amply clear that the Apex Court has opined that filing of the second complaint is barred only when the first one has resulted in conviction or acquittal or even discharge of the accused on merits. Merits can be judged only after the conclusion of the trial. In the instant case, the trial could not be proceeded because of the failure of the complainant to appear before the court, much less to produce his evidence in support of his allegations. Accused was also absent on the relevant date. Therefore, in these facts and circumstances of the case, the provisions of Section 300 CrPC, barring the second trial of the accused for the same offence after conviction or acquittal in the previous one, are not attracted inasmuch as Section 300 CrPC envisages the acquittal or conviction after conclusion of the trial, and not on account of dismissal of the complaint due to absence of the complainant. The precedent relied upon by the learned Counsel for the applicant itself lays down that the second complaint is not barred if the dismissal of the earlier one was not on merits, but on account of the default on the part of the complainant.
6. In view of the above-narrated legal proposition, this petition has no force and the same is liable to be dismissed. Petition is, accordingly, dismissed. Stay order dated 27.2.2007, passed by this Court, is vacated. 4
7. Registry is directed to inform the court concerned accordingly.
(Servesh Kumar Gupta, J.)
11.10.2011
Prabodh
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