The main legal point established in the judgment is that the only course open to the complainant in case of dismissal due to absence is to prefer an appeal in the High Court against the order of the learned Magistrate by special leave of the Court under Section 378(5) of CrPC.

1. 1. By this common judgment both the applications are being disposed of together. The applicant had filed two private complaint cases for offence punishable U/s 138 of the Negotiable Instruments Act, 1881. The complaint cases were registered as SCC No.3195/98 and SCC No.3197/98. They were posted for hearing on 24.2.2003. When the Criminal cases were called out, the complainant was found absent and hence, order of dismissal was passed. The learned C.J.M. discharged the accused/respondent for want of prosecution. It appears that in the latter part of the day, advocate for the complainant submitted an application to recall the order of dismissal on the ground that the complainant/applicant had gone out of station for urgent personal work and the application could not be submitted well in time due to rush of work.

2. 2. The Respondent objected the application on the ground that absence of the complainant was unjustified. The objection raised further was that the Criminal Court had no power to restore the complaint cases by reviewing its own order of dismissal. The learned Chief Judicial Magistrate, Nanded considered arguments at Bar and the tenor of case law cited by the parties. The applications submitted by the complainant were rejected by order dated 5.2.2003.

3. 3. Feeling aggrieved, the complainant preferred Criminal Revision Petitions. The learned Sessions Judge came to the conclusion that the Revision Petitions are not maintainable against the order of dismissal of the complaint U/s 256 of the Code Of Criminal Procedure, 1973 It is for such reason that the learned Sessions Judge was pleased to dismiss the Revision Petitions. It appears that the learned Sessions Judge relied on "Om Gayatri and Co. & Others Vs. State of Maharashtra and another" (2006 Criminal L.J. 601). That is the main reason as to why both the Revision Petitions were dismissed by the learned Sessions Judge.

4. 4. Mr.Sharma, learned advocate for the applicant, would submit that the complainant could not be thrown out of the Court due to single default in appearance on the date of hearing. He would point out that the application to recall the order of dismissal was submitted on the same day during later part of the working hours. He would further submit that the order of dismissal could be revised, on showing appropriate cause, by the Court of Sessions. He contended that the learned Sessions Judge ought not to have dismissed the Revision Petitions only for the reason that they are not maintainable. According to Mr.Sharma, the Revision Petitions are maintainable though the Magistrate may not have inherent power to review his order of dismissal and to restore the case. He seeks to rely on "Mahendra Indermal Borana Vs. Anil Shankar Joshi and another" 2004 (1) Bombay Cases Reporter (Cri.) 805. As against this, Mrs. Patil, learned advocate appearing for the Respondent seeks to rely on "Maj. Genl. A.S.Gauraya and another Vs. S.N.Thakur and another" 1986 CrLJ 1074. She also heavily relied on "Om Gayatri & Co. & others Vs. State of Maharashtra and another" 2006 CrLJ 601.

5. 5. Upon consideration of the view taken in "Om Gayatri & Co.& others Vs. State of Maharashtra and another" (supra), it appears, no doubt that the learned Single Judge (Kukday, J.) held that in case of absence of complainant, if complaint is dismissed U/s 256 of the Code Of Criminal Procedure, 1973 and results in acquittal of accused then only appeal would lie against said order. The learned Single Judge further held that remedy of revision would not be available in such a case.

6. Though, prima facie there appears divergent opinion expressed by the two coordinate Benches yet, it cannot be overlooked that in "Om Gayatri and Co. and others Vs. State of Maharashtra and another" (supra), the learned Single Judge has considered case of "Mahendra Indermal Borana Vs. Anil Shankar Joshi and another" 2004 [1] Bombay Cases Reporter (Cri.) 805. He has discussed as to how foundation of "Mahendra