ORAL JUDGEMENT (PER : F.I.REBELLO, J.) :-

1. This matter has been referred by a learned Single Judge for deciding the following question :- “Whether a revision application under section 397 of the Criminal Procedure Code, 1973 for challenging the order of dismissal of the complaint under section 256 of the said Code, 1973 is maintainable or whether the only remedy available against the said order is to prefer an appeal under section 378 of the said Code of 1973?”

2. The learned Single Judge has referred the aforesaid question to the Division Bench as the learned Single Judge found that conflicting views were expressed by the learned Single Judges of this Court in that regard. The reference order dated 1st August 2008 refers to the following judgments delivered by the learned Single Judges of this Court viz. :

(a) holding that the only remedy available is that of an appeal and that revision application is not maintainable:-

(i) Om Gayatri and Company vs. State of Maharashtra reported in 2006-Cri.L.J.-601;

(ii) Raja s/o Dr.S.P.Upadhaye vs. State of Maharashtra reported in 1993(3)-Mh.L.J.-397;

(b) a revision application is maintainable – Mahendra Indermal Borana vs. Anil Shankar Joshi and another reported in 2004(1)-Bom.C.R.(Cri.)-805.

3. Before resolving the conflict between the aforesaid two views, firstly, we will refer to the facts of this case which may have some relevance for the view that we may take ultimately while answering the reference. The respondent herein is the original complainant who filed a private complaint against the petitioner-accused u/s 138 of the Negotiable Instruments Act. The complaint was numbered as STC N.932 of 1999. The learned JMFC, Madha issued process against the accused for the offences punishable under sections 135 and 138 of the Negotiable Instruments Act. The accused appeared in response to the process, pleaded not guilty and claimed to be tried. The plea of the accused was recorded on 25th May 2000. The matter was adjourned on several occasions. It was then posted for adducing evidence of the complainant. The JMFC was pleased to dismiss the complaint by his order dated 24th August 2004 for non appearance of the complainant by passing an order u/s 256 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the said Code” for the sake of brevity). The aforesaid order dated 24th August 2004 reads thus :- “ORDER Complainant and his advocate find absent when called. Advocate for accused has filed application Exhibit-55 for dismissal of the complaint. Hence, complaint is hereby dismissed under the provisions of S.256 of the Cr.P.C. and accused hereby acquitted. His bail bond stands cancelled. Sd/-” It is thus clear that the learned JMFC not only dismissed the complaint on the ground that the complainant and his advocate were absent but also was pleased to pass a specific order of acquittal of the accused.

4. Section 256 of the Code reads thus :- “256. Non-appearance or death of complainant- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day; Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal assistance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the nonappearance of the complainant is due to his death.” A perusal of this section demonstrates that powers under this section are exercised after the summons has been issued on a complaint. If on the day appointed for appearance of th

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