P. Sam Koshy, J.

1. The present revision has been preferred assailing the order dated 20.05.2016 passed in Criminal Revision No. 21/2013 by the 8th Additional Sessions Judge, Raipur. Vide the said order, the court below in exercise of its revisional power has set aside the order of JMFC, Raipur in complaint case No. 305/2009 which got dismissed for want of prosecution on 14.06.2012.

2. The relevant facts in brief is that, the respondent in the instant case had filed a complaint case against the petitioner under Section 138 of Negotiable Instruments Act (for short, the NI Act). The said complaint was filed as early as on 11.09.2008 and which was registered and notices were issued for appearance of the petitioner. Since 2008 onwards despite summons, fresh summons and bailable warrant and non bailable warrant being issued for appearance of accused person, appearance could not be effected upon. However, when the matter was listed on 14.06.2012, neither complainant appeared nor was represented through his counsel before the court below and therefore, the court below vide order dated 14.06.2012 dismissed the complainant case for want of prosecution.

3. Against dismissal of said complaint case under Section 138 NI Act, the complainant preferred a revision before the sessions court i.e. 8th Additional Sessions Judge wherein the case was registered as Criminal Revision No. 21 of 2013. The revisional court, taking into consideration the entire facts and circumstances of the case vide order impugned order dated 20.05.2016, set aside the order of JMFC dated 14.06.2012 and directed the parties to enter appearance before the JMFC on 15.06.2016 for further proceeding. It is this order which is under challenge in this petition.

4. According to learned counsel appearing for the petitioner, the very inception of the criminal revision before the court below itself was bad in law inasmuch as once the complaint case got dismissed for want of prosecution on 14.06.2012, the net result of said dismissal of complaint amounts to acquittal of accused. Against the order of acquittal, it would have been only filing of Cr.M.P. under Sections 378(3) and 378(4) of Cr.P.C. According to him, under no circumstances the revisional court could have gone into the veracity of the impugned order, as dismissal of complaint case amounts to acquittal of the accused. He relied upon the decision of Bombay High Court in case of Om Gayatri and Co. v. State of Maharashtra, reported in 2006 (1) AIR Bombay 292. He also relied upon decision of Delhi High Court in case of Kalpana Tyagi v. Sneh Lata Sharma, reported in 2003 CrLJ 3395.

5. Per contra, learned counsel appearing for the respondent submitted that it is a case where the proceedings on 14.06.2012, on which date the complaint got dismissed for want of prosecution was in fact only listed for further orders and was not fixed for appearance of the accused persons. Therefore, it cannot be said to be an order of acquittal, as it was only dismissal simpliciter for want of prosecution. He further, referring to the previous order sheets submits that even on the earlier dates of hearing also the matter was not fixed for appearance of the accused person, but was only for further orders. Thus, against dismissal of the complaint for want of prosecution, the only remedy left with him was to prefer a revision and which he had done. Therefore, it cannot be said that the court below has committed any illegality in allowing the revision. He relied upon the judgment of Kerala High Court in case of Bristo Foods Pvt. Ltd. v. Hariharan Nair, reported in 2007 Cr.LJ 1095. He further submits that there are two necessary factors which has to be looked into at the time of dismissal of the complaint under Section 256 (1) Cr.P.C. i.e. (i) whether summons had been issued to the accused and (ii) whether the matter was fixed for appearance of the accused persons before the court.

6. According to counsel for the respondent, in the present case tho