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(BOMBAY HIGH COURT)
J.N. Patel, J.
Raja s/o Dr. S.P. Upadhyay..... Applicant.
Versus
State of Maharashtra another..... Non applicants.
Criminal Revision Application No. 83 of 1996, decided on 27-7-1999.
Advocates appeared :
B.N. Motha, for the applicant.
A.G.P., for the N.A. No. 1/State.
A.V. Bhide, for the N.A. No. 2.
Headnote:Section 138-Code of Criminal Procedure, 1973-Sections 202, 256(1), 378(4) and 401(4)-Validity of Revision against acquittal-Cheque dishonoured-Discharge of accused by Magistrate-Order set aside by Additional Session Judge in Revision-Order passed under Section 256(1), Cr PC is an order of acquittal and not of discharge-Order in Revision without jurisdiction and liable to be . set aside.-What remedy was available to the complainant against the order passed by the Magistrate under Section 256(1) of the Criminal Procedure Code, 1973. There is no dispute about the fact that the Magistrate has dismissed the complaint under Section 256(1) of the Criminal Procedure Code, 1973, as the complainant remained absent and as a consequence of such dismissal, passed an order that the accused is discharged. Obviously, the order of the Magistrate discharging the accused was incorrect to the extent that he ought to have acquitted the accused in terms of Section 256(1) of the Criminal Procedure Code, 1973. The complainant appears to have been misled by the fact that the Magistrate having discharged the accused, he could avail the remedy of preferring a revision and that is what appears from the Memo of Revision preferred by the complainant before the Court of Sessions. In the circumstances, the Additional Sessions Judge ought to have summarily rejected the Revision Application directing the complainant to prefer an appeal against the order passed by the Magistrate under Section 256(1) of the Criminal Procedure Code, 1973; but the Additional Sessions Judge committed an error in entertaining the revision on merits and interfering with the order passed by the Magistrate.
It cannot be gainsaid that merely because the Magistrate committed an error in recording the order of discharge, that would invest the Complainant with a right to prefer a revision and he was justified in doing so. As the order itself is very clear that it has been passed under Section 256(1) of the Criminal Procedure Code, 1973, it will necessarily have to be construed an order of acquittal under Section 256(1) and not that of discharge there is one more distinction which will have to be kept in mind and that is, that once an order of acquittal under Section 256(1) of the Criminal Procedure Code, 1973 is passed, then the complainant is debarred from filing a second complaint on the same facts so long as the order of acquittal is not set aside. Therefore, the only course open to the complainant was to prefer an appeal in the High Court against the said order of the Magistrate by special leave of the Court under Section 378(5) of the Criminal Procedure Code, 1973.
2.The non-applicant No. 2 filed a complaint case against the applicant/accused on 14-1-1994 for having committed offences under section 138 read with section 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act'). The complaint was registered and the learned Magistrate issued process under section 138 of the NI Act against the applicant/accused. It so happened that when on the date, i.e., 5-4-1995, the case was fixed for hearing, the non-applicant/complainant remained absent. It was kept back till 1.30 p.m., in the afternoon and as none appeared for the non applicant/complainant, it came to be adjourned to 6-4-1995. On that day, it appears that the Court waited for the non applicant/complainant till 4.00 p.m., and as none appeared for him till that time, the complaint came to be dismissed for want of prosecution and the accused was discharged.
3.This order was impugned by the non applicant/complainant by preferring a revision before the Court of Session at Nagpur, which came to be registered as Criminal Revision No. 924/95. The revision was heard and allowed in favour of the non applicant/complainant by the impugned order.
4.It is submitted by the applicant/accused that the said order allowing the revision by the learned Additional Sessions Judge was without any jurisdiction and, therefore, is invalid and non est. It is submitted that the learned Magistrate has passed an order under section 256(1) of the Criminal Procedure Code, 1973 as the complainant did not appear, dismissed the complaint and discharged the accused, which order ought to have been of acquittal. It is submitted that the complainant has wrongly invoked the revisional jurisdiction of the Court of Sessions in the matter; though in the facts and circumstances of the case and particularly when the complaint had been dismissed for absence of the complainant and its non prosecution, the accused was entitled for acquittal and was so acquitted, the only remedy available to the complainant was by way of an appeal to the High Court by special leave of the Court under section 378(4) of the Criminal Procedure Code, 1973 and the revision is expressly barred under section 401(4) of the said Code.
5.Mr. Mohta, learned Counsel for the applicant/accused has relied upon the following cases: (1) (Swaroop Singh v. Emperor)1, A.I.R. 1948(35) Allahabad 135; (2) (Municipal Committee, Amritsar, through its Executive Officer v. Shri Labhu Ram and others)2, 1970 Cri.L.J. 553 (Punjab Haryana High Court); (3) (Supinder Singh v. Provident Fund Inspector)3, 1998(II) C.C.R. 83 (Punjab Haryana High Court); and (4) (Thampi v. Sadanandan)4, 1998(II) C.C.R. 213 (Kerala High Court); and submitted that all these authorities are consistent on one point that in case the complaint is dismissed under section 256(1) of the Criminal Procedure Code, 1973, then the consequential order would be acquittal of the accused and not discharge, and even if the trial Court has passed an order of discharge, it would mean an acquittal and, therefore, in no case, the complainant had a remedy of invoking the revisional powers of the Court of Sessions and ought to have filed an appeal before the High Court. In the circumstances, it is submitted that the impugned order deserves to be quashed and set aside.
6.Mr. Bhide, learned Counsel for the non applicant No. 2/complainant, submits that the complainant was justified in invoking the revisional powers of the Court of Sessions as the order was passed by the learned Magistrate which clearly recorded that the applicant/accused has been discharged and,
