Dismissal of complaint for non-appearance of complainant amounts to acquittal as per Section 256 of the Code of Criminal Procedure.

ORDER :

We have heard learned counsel for the parties.

2. Leave granted.

3. This appeal by special leave is directed against the judgment dated 28.3.2011 passed by the High Court of Andhra Pradesh at Hyderabad in Criminal Revision Case No. 186 of 2011, whereby the High Court dismissed the Criminal Revision Case filed by the appellant herein.

4. The facts of the case briefly are as follows:-

(a) The appellant and the respondents are businessmen. They had monetary transactions and it appears that a Cheque bearing No. 482572 drawn on Syndicate Bank, Jubilee Hills Branch, Hyderabad, for Rs.4,32,00,000/- was issued in favour of the respondent-complainant. The said cheque was dishonored on presentation with an endorsement "insufficiency of funds". The respondent filed a complaint following the procedures provided under the Negotiable Instruments Act, alleging an offence under Section 138 of the said Act. After service of summons, it appears that the matter was adjourned from time to time and ultimately on 13.4.2010, the complaint was dismissed on the ground that the respondent-complainant was absent. The respondent-complainant approached the Metropolitan Sessions Judge and filed a revision, which was also dismissed on 10.8.2010 on the ground of absence of complainant.

(b) Subsequently, another revision petition was filed and by an order dated 22.12.2010, the learned Metropolitan Sessions Judge set aside the said order dated 13.4.2010 dismissing the said complaint and restored the Complaint Case No. 428 of 2009.

(c) An application was filed before the High Court by the appellant on the ground that a second revision is not maintainable. The High Court held that the Metropolitan Sessions Judge after being satisfied that the earlier order was passed only on technicalities, had entertained the second revision, and, therefore, the order passed by the Metropolitan Sessions Judge was not illegal. Challenging the said decision of the High Court, this special leave petition has been filed.

5. The learned counsel appearing on behalf of the appellant raised the point before us that the second revision petition is not maintainable and he further drew our attention to Section 256 of the Criminal Procedure Code and submitted that dismissal in default tentamounts to acquittal and, therefore, the only remedy available to the respondent-complainant was by way of appeal under Section 378(4) of the Cr.P.C. Further, the respondent could have the benefit of filing a second revision petition. He submitted that the second revision petition is not maintainable.

6. The learned counsel duly took us to Sections 256, 378, 397(3), 399 and 401(4) of the Code of Criminal Procedure and submitted that in accordance with Section 256, if the summons has been issued on complaint, the Court has power to dismiss the said complaint when a complainant does not appear before the court to pursue the complaint or for any other reason, and in such a case, the Magistrate shall acquit the accused. Therefore, in the instant case, the dismissal of the complaint tentamounts to acquittal of the appellant. He further contended that the procedure laid down in the Code would also show that under Section 397(3), where both Sessions Judge and the High Court have concurrent powers, second revision would not be competent. He further contended that under Section 399(3), where any application for revision is made before the Sessions Judge, the decision of the Judge thereon in relation to such person shall be final and no further revision shall be entertained by the High Court or any other Court. He further submitted that under Section 401(4) Cr.P.C., where an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained. Therefore, he submitted that the Sessions Judge could not have entertained the second revision.

7. The learned counsel submits that in view of the said provisions of the Code of Criminal Procedure, the High Court is not right to hear out the second revisi