S. No. 15 Regular Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM(M) No. 40/2024 Gulzar Ahmad Khuroo …Appellant/Petitioner(s) Through: Mr. Usman Gani, Advocate Vs. Noor Mohammad Gujri ...Respondent(s) Through: Mr. Syed Sajad Geelani, Advocate CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE O R D E R 06.05.2025 1. On mention, this matter is taken out of turn. 2. Heard and considered 3. A complaint was filed by respondent, namely, Noor Mohammad Gujri before the Trial Court, viz, Judicial Magistrate 1st Class Baramulla, under Section 138 of the Negotiable Instrument Act. While the complaint had come to be dismissed on 15.04.2014, yet it was restored by the Trial Court vide order dated 22.04.2014. 4. Petitioner is accused in abovementioned complaint before Trial Court. He challenges order of restoration dated 22.04.2014. The ground on which the order of restoration is being challenged is that the Trial Court has no power to pass an order restoring a complaint after it was dismissed. According to counsel for petitioner, the order of restoration is bad and requires to be quashed. To support this contention, he has relied upon judgments passed in CRM(M) No.97/2022 titled as “Mehraj Ud Din Andrabi vs Zia Darakshan”, decided on 04.07.2024, CRMC No.250/2018 titled as “Ghulam Rasool Mughal vs Gh. Ahmad Hajam”, reported in JKJ Online 73114 and CRM(M) No. 280/2021 and CRM(M) No. 281/2021, titled as “Fayaz Ahmad Sheikh vs Mushtaq Ahmad Khan”, reported as 2022 SCC Online J&K 565. Can a complaint dismissed for default be restored has been considered in these cases and it has been held that restoration would not lie because the dismissal amounts to acquittal of the accused. It was also pointed out that dismissal of a complaint for non-appearance of complainant, or discharge or acquittal of accused on the same ground is a final order, and in absence of any specific provision in the Code of Criminal Procedure, a Magistrate cannot exercise any inherent jurisdiction. 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 complainant to put in appearance, cannot be restored. The question, whether Magistrate was empowered to dismiss a complaint in default for non-appearance, is a matter apart and can be legitimately agitated in appropriate proceedings. In that view of matter, it is apparent that the Trial Court had no jurisdiction to pass the order impugned and as a corollary thereof it requires to be set-aside. Reference in this regard is worthwhile to be placed on Maj, Genl, A.S.Gauraya and another v. S.N.Thankur and another, AIR 1986 SC 1440. Therefore, the remedy available to the petitioner was to file an appeal against acquittal. 5. Since the order impugned restoring the complaint dismissed in default is bad, therefore, this petition is allowed and order impugned dated 22.04.2014, is quashed. 6. Disposed of in terms of above. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 06.05.2025 Shabroz