Back
2008 (2) Bankmann 334 (Bom.)
BOMBAY HIGH COURT
V.R. Kingaokar, J.
Vinay Kumar Maliwal —Applicant
versus
Ramesh Saboo —Respondent
Criminal Application No. 3112 and
3113 of 2007
Decided on 18.12.2007
Counsel for the Parties:
For the Applicant:Mr. Vijay Sharma, Advocate.
For the Respondent:Mrs. Pratibha A. Patil, Advocate.
IMPORTANT POINT
Where complaint was dismissed for non-appearance of complainant and accused was acquitted under Section 256 Cr.P.C. only appeal would be mainainable against such order and revision would not be maintainable.
Headnote:Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 256—Order of dismissal of complaint and acquittal of accused when complainant failed to appear to proceed with case—Revision against order was not maintainable—Petition under Section 482 Cr.P.C.—Petition was not maintainable because appellate remedy was available.
Held: I am of the opinion that the learned Judicial Magistrate had no power to review his own order of dismissal. The complainant could have preferred an appeal against the order of acquittal and such appeal could be entertained only the leave of this Court. It appears that the complainant was absent for three continuous dates and a specific order was passed on last date i.e.10.2.2003 that case shall be posted on 24.2.2003. Consequently, the dismissal of the complaint on 24.2.2003 due to absence of the complainant can not be faulted with. In this view of the matter, there is no merit in both the applications filed by the original complainant. These are the applications filed under Section 482 of the Cr.P.C. They are not maintainable because appellate remedy is available and the applicant complainant must show sufficient ground to entertain the appeal against the order of acquittal. It is well settled that where there is a specific remedy provided by the law, Section 482 of the Cr.P.C. can not be invoked. In Him Advances and Savings Pvt. Ltd. v. Ravinder Kumar Gupta, 2002 Cri. L.J. 4741 (H.P.) it is observed by Himachal Pradesh High Court that there being specific provision of appeal in Section 378 Cr.P.C. against acquittal in respect of order under Section 256 Cr.P.C., the provisions of Section 482 of the Cr.P.C. can not be invoked. Considering the above discussion, I am inclined to dismiss both the applications since they are not maintainable in legal parlance and also because the same are without merits. (Para 8)
Result: Applications dismissed.
V. R. Kingaokar, J.—By this common judgment both the applications are being disposed off together. The applicant had filed two private complaint cases for offence punishable under Section 138 of the Negotiable Instruments Act. The complaint cases were registered as S.C.C. No.3195/98 and S.C.C. 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 the time due to rush of work.
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 order of dismissal. The learned Chief Judicial Magistrate, Nanded considered arguments at Bar and the tenor of cases law cited by the parties. The applications submitted by the complainant were rejected by order dated 5.2.2003.
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 under Section 256 of the Cr.P.C. 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 v. State of Maharashtra and another.1 That is the main reason as to why both the revision petitions were dismissed by the learned Sessions Judge.
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 the y 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 v. Anil Shankar Joshi and another.2 As against this, Mrs. Patil, learned Advocate appearing for the respondent seeks to rely on Maj. General. A. S. Gauraya and another v. S. N. Thakur and another.3 She also heavily relied on Om Gayatri & Co. & other v. State of Maharashtra and another.4
5. Upon consideration of the view taken in Om Gayatri & Co. & others v. State of Maharashtra and another (supra), it appears, no doubt that the learned single Judge (Kukday, J.) held that in case in absence of complainant, if complaint is dismissed under Section 256 of the Cr.P.C. 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 co-ordinate Benches yet, it cannot be overlooked that in Om Gayatri and Co. others v. State of Maharashtra and another (supra), the learned single Judge has considered case of Mahendra Indermal Borana v. Anil Shankar Joshi and another (supra). He has discussed as to how foundation of Mahendra Indermal Borana is somewhat shaky. He also duly considered the dictum In Maj General A. S. Gauraya and another v. S. N. Thakur and another (supra) while analysin
