The order of discharge under Sec. 245(2) of Cr.P.C. can be challenged by filing a revision and not by filing an appeal.

JUDGMENT

1. RULE. Rule made returnable forthwith. Heard finally by consent of the learned advocate for the petitioner and learned Additional Public Prosecutor for respondent no.2/State. Respondent no.1/accused remained absent, though served.

2. In this writ petition, challenge is to the judgment and order dtd. 18/3/2020 passed by the learned Sessions Judge, Akola, whereby the learned Judge was pleased to dismiss the revision application challenging the order passed by the learned Judicial Magistrate, First Class, (Court No.9), Akola, dtd. 21/9/2017 in Regular Criminal Case No. 114/2015. Learned Magistrate by the order dtd. 21/9/2017 had dismissed the private complaint filed by the petitioner/complainant and discharged the accused/respondent no.1 for the offences punishable under Ss. 420, 468, 472 read with Sec. 109 of the Indian Penal Code.

3. Learned advocate for the petitioner submitted that the finding recorded by the learned Sessions Judge, Akola that the revision was not maintainable against the order of dismissal, is contrary to law. Learned advocate submitted that the rights of the parties by dismissal of the complaint and discharge of the accused, were finally decided. Learned advocate pointed out that the order of dismissal of the complaint and discharge of respondent no.1/accused, by invoking the provisions of Sec. 245 sub-sec. 2 of the Code of Criminal Procedure, was not an appealable order. It is submitted that against this order, a revision would lie.

4. As far as the merits are concerned, learned advocate submitted that there was error on the part of the learned Sessions Judge while rejecting the application on merits as well. Learned advocate took me through the record and proceeding and submitted that the so called defaults on the part of the complainant, recorded in paragraph 10 of the impugned judgment, were committed in 2016 and not immediately preceding the date of passing of the order. Learned advocate submitted that the complainant regularly attended the complaint proceeding, however on 2-3 dates, the learned Presiding Officer was on leave. Learned advocate further submitted that the application made for setting aside the dismissal order on the very same day and date, indicates due diligence on the part of the complainant in prosecuting the complaint. Learned advocate submitted that the learned Magistrate was required to see that the matter was decided on merits. Learned advocate submitted that the petitioner/complainant cannot be denied an opportunity to take his grievance to a logical conclusion.

5. Learned Additional Public Prosecutor for the State submitted that on merits, the learned Sessions Judge found that the petitioner/complainant was at fault. Learned APP, by drawing my attention to the roznama and other record, submitted that the complainant was at fault.

6. Learned advocate for the petitioner pointed out that a civil suit filed by the complainant for specific performance of the contract arising out of the transaction, which is the subject matter of the complaint, was decreed. In my view, while considering this petition, this fact cannot be glossed over. Prima facie, the question that needs to be addressed is whether there is mistake on the part of the learned Judge while rejecting the revision application on merits ? On going through the observations made in paragraph 10 of the impugned judgment and order, it is seen that these observations and findings are supported by the record. For some reason or the other and that too best known to the complainant, there was a failure on the part of the complainant to adduce evidence. Since the case was instituted otherwise than on police report, the complainant was required to adduce his evidence and the evidence of the witnesses before framing the charge.

7. It is seen on a perusal of the roznama of the trial Court that the learned Magistrate had granted sufficient opportunity and indulgence to the complainant. The complainant remained absent for unexplained