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2005 Supreme(Bom) 1481
IN THE HIGH COURT OF BOMBAY
Om Gayatri and Co.
Versus
State of maharashtra
Decided On : (October 20, 2005) 2006
Headnote:Criminal Procedure Code, 1973 - Section 256(1) Order of acquittal passed under Section 256(1) Remedy of the complainant is to prefer an appeal under Section 378 after obtaining leave of the Court under Section 378(4) No revision against order of acquittal is maintainable. Section 256(1) of the Criminal Procedure Code, mandates that if the absence of the complainant is not justified, the Magistrate shall acquit the accused. In a summons case, instituted on a complaint, if the complainant is absent on the date of hearing, the Magistrate has to follow either of the three courses, namely, (1) Acquit the accused; (2) to adjourn the case and (3) to dispense with the attendance of the complainant and to proceed with the case. The Magistrate found that the complainant was avoiding to lead evidence, therefore, the Magistrate proceeded to pass an order acquitting the accused. Once this order has been passed, the remedy of the complainant is to prefer an appeal under Section 378 of the Code of Criminal Procedure Court after obtaining leave of the Court as required by Section 378(4) of Criminal Procedure Code. The Sessions Judge had no jurisdiction to entertain a revision against an order of acquittal passed under Section 256(1) of Criminal Procedure Code. Therefore, the order passed by the Sessions Judge is illegal and non-est. The said order deserves to be quashed and set aside. Petition allowed. AIR 1959 Bombay 94, 1992 Mh LJ 118, 1998 Mh LJ 576 and 1999(3) Mh LJ 397, Rel.
( 1 ) HEARD. Rule, made returnable forthwith by consent of parties.
( 2 ) THE petitioners have impugned order dated 20. 6. 2003 passed by Additional Sessions Judge, Nanded in Criminal Revision no. 24/2002, allowing the revision and setting aside the order dated 14. 1. 2000 passed by chief Judicial Magistrate dismissing the complaint in S. C. C. No. 1150/ 1997.
( 3 ) THE facts, relevant for the purpose of deciding this petition are that: Respondent no. 2 is engaged in a wholesale business of selling Dal to the customers on credit basis. Petitioner was a regular customer. For the purpose of clearing the dues, the petitioner issued cheque No. 495330 drawn on Punjab national Bank, Nanded on 25. 4. 1997 for Rs. 21. 010/ -. The cheque was deposited by Respondent no. 2 in Peoples Cooperative Bank, hingoli on 25. 4. 1997. He was however, informed that the cheque was dishonoured. Therefore, notice as required by proviso (b) to section 138 of Negotiable Instruments Act, was served but as payment was not made, respondent no. 2 filed a complaint in the court of Chief Judicial Magistrate, Nanded on 20. 6. 1997 against the petitioners for the offence punishable under Section 138 of Negotiable Instruments Act, 1888 (hereinafter to be referred to as N. I. Act ). Plea of the petitioner was recorded on 15. 11. 1999 and the matter was adjourned for recording of evidence to 24. 11. 1999. It was further adjourned for the same purpose to 6. 12. 1999 and then to 24. 1. 2000. On that day, respondent no. 2 remained absent. Learned magistrate waited upto 5. 00 p. m. However, as respondent no. 2 did not appear before the court, he came to the conclusion that Respondent no. 2 is avoiding to adduce evidence. Therefore, by referring to judgment of this Court, reported in 1998 Mah LJ 576 : (1998 Cri LJ 3754) learned Magistrate dismissed the complaint and acquitted the petitioner.
( 4 ) BEING aggrieved by this order. Respondent no. 2 filed criminal Revision Petition no. 24/2000 in the court of sessions Judge. The matter was heard by Additional Sessions judge. During the pendency of the criminal Revision, the petitioner filed an application on 19. 6. 2003 seeking time to file reply. However, this application was rejected. The matter was heard in the absence of the petitioner, and was allowed by order dated 20. 6. 2003, setting aside the order of learned magistrate passed under section 256 of Cr. P. C. This order is impugned by the petitioner in the present petition on the ground that a revision cannot be filed against the order of acquittal passed under Section 256 (1) of the Code of Criminal Procedure.
( 5 ) A short point which arises for determination in this petition is whether a revision can be filed against the order of acquittal passed under Section 256 of Cr. P. C.
( 6 ) BOTH the parties are heard at length. According to learned Counsel for the petitioners, only an appeal can be filed against the order of acquittal passed under Section 256 (1) of Cr. P. C. , therefore, Additional Sessions Judge could not have entertained the revision preferred against order of acquittal. In this view of the matter, the order passed by Additional Sessions Judge in criminal Revision No. 24/2000 is without jurisdiction and non-est and deserves to be set aside.
( 7 ) ON the other hand, learned Counsel for respondent no. 2 contends that a cornplaint is filed under Section 138 of the N. I. Act. It is a non-cognizable offence and, therefore. Section 249 of Cr. P. C. becomes applicable. In this context the order passed by learned Magistrate can be treated as an order of discharge and revision can be maintained against such an order. Learned Counsel has also referred to the decision of this court, reported in 2004 ALL MR (Criminal) 1715 to contend that the Sessions Court has jurisdiction to entertain revision against an order of dismissal of the complaint and, therefore, the impugned order will have to be upheld.
( 8 ) BEFORE entering the merits of this case, it would h
