ORDER :

1. The petition is admitted and taken up for final disposal with the consent of the learned counsel appearing for the parties.

2. This is a criminal petition filed under section 482 of Cr.P.C., seeking to quash/set aside the order dated 24.8.2016, passed by the III Addl. District and Sessions Judge, Ballari, sitting at Hospete, in Crl.R.P.No.5065/2015.

3. The brief facts of the case are that, the respondent herein filed a private complaint against the petitioner in PCR No.37/2013, in the Court of Prl. Civil Judge and JMFC, Hospete, for the offence punishable under section 138 of the Negotiable Instruments Act. The said case was registered in C.C.No.1458/2013. Subsequently plea of the case was recorded and the case was posted for evidence of the complainant. The complainant failed to adduce evidence in spite of sufficient opportunity. So the trial Court after giving sufficient opportunity, dismissed the complaint for non prosecution, on 7.8.2015. The respondent complainant kept quite for all the time of limitation and thereafter filed Crl.R.P.No.5065/2015 before the III Addl. District and Sessions Judge, Ballari, sitting at Hospete, for restoration of the case on the file. Although the petition was time barred, no application to condone the delay was filed. The petitioner had appeared in the said case, filed his objections stating that the petition is time barred. However the said Court allowed the revision petition by the impugned order dated 24.8.2016 and set aside the order of dismissal and restored the case to file.

4. The petitioner has stated that the criminal revision petition was patently time barred and no application to condone the delay was filed. It is specifically contended that the revision petition filed by the respondent before the District and Sessions Judge is not maintainable under section 397 of Cr.P.C. and the Sessions Court should not have exercised the jurisdiction under section 397 of Cr.P.C. Therefore the impugned order is liable to be set aside.

5. Heard the learned counsel for the petitioner and the respondent.

6. The learned counsel for the petitioner submitted that, when the private complaint was dismissed for non prosecution, under section 256 of Cr.P.C., it amounts to acquittal of the accused and therefore no revision lies under section 397 of Cr.P.C. and that only an appeal lies before this Court under section 378(4) of Cr.P.C. and therefore the impugned order passed by the Sessions Court entertaining the revision petition and allowing the same is contrary to law and that the Sessions Court had no jurisdiction to entertain the said revision petition and set aside the order of dismissal of complaint, which resulted in acquittal of the accused.

7. In support of his submission, the learned counsel has relied on the judgment in the case of V.K.Bhat vs. G.Ravi Kishore and another, Criminal Appeal No.184/2016, reported in (2016) 13 SCC 243; the judgments of this Court in Crl.P.No.2424/2014, decided on 13.7.2015 and Crl.P.No.10002/2012, decided on 3.12.2013 along with the judgment of the Hon’ble Delhi High Court, in the case of Kalpana Tyagi vs. Sneha Lata Sharma, LAWS (DLH) 2003-3-27.

8. Per contra, the learned counsel for the respondent vehemently submitted that the order of dismissal of the complaint for non prosecution is revisible, since there was nothing to re-appreciate the evidence before the appellate Court and that the order dismissing the complaint does not amount to an order of acquittal under section 256 of Cr.P.C. Since there was no evidence to be appreciated by the appellate Court, the Sessions Court or the High Court can exercise the powers under section 397 of Cr.P.C., in order to consider whether the impugned order suffers from propriety, correctness and legality.

9. In support of his submission, the learned counsel has relied on the judgment in the case of Associated Cement Co. Ltd., vs. Keshavanand, (1998) 1 SCC 687; the judgments of this Court in Crl.P.No.102192/2018, decided on 6.2.