The dismissal of a complaint for non-appearance of the complainant does not amount to acquittal of the accused, and the appropriate remedy is to file an appeal, not a revision petition.

JUDGMENT :

1. Challenge has been thrown by the petitioner to the order dated 26.08.2018 passed by Additional Sessions Judge, Sopore, whereby revision petition filed by the respondent against the order of dismissal of his complaint passed by learned District Mobile Magistrate, Sopore, on 27.12.2017, has been allowed.

2. The facts emerging from the record are that respondent had filed a complaint for offences under Section 138 read with 142 of Negotiable Instruments Act ["the Act" for short] against the petitioner before the Court of District Mobile Magistrate, Sopore (hereinafter referred to as the trial Magistrate). It seems that during the pendency of the said complaint, the complainant/respondent stopped appearing in the case and on 27.12.2017, the same was dismissed for non-prosecution.

3. The aforesaid order came to be challenged by the complainant/respondent before the Court of Additional Sessions Judge, Sopore (hereinafter referred to as the Revisional Court) by way of a revision petition. The learned Revisional Court, after making an elaborate discussion, vide its order dated 26.08.2019, allowed the revision petition and set aside the order of trial Magistrate and asked the parties to appear before the trial Magistrate with a further direction to the said Magistrate to revive the complaint in question to its original number and to proceed with the same in accordance with law.

4. The only contention that has been raised by the learned counsel for the petitioner is that once an order of dismissal of complaint is made by the Magistrate, the same amounts to acquittal. According to the learned senior counsel for the petitioner, an order of acquittal can be challenged only by way of an appeal after seeking leave to file the same and not by way of a revision petition.

5. The above contention of the petitioner has been disputed by learned counsel for the respondent.

6. I have heard learned counsel for the parties and perused the material on record.

7. As already noted, the complaint filed by the respondent against the petitioner for offence under Section 138 of the Act came to be dismissed by the learned trial Magistrate on account of default in appearance of the complainant and not on merits. It appears from the perusal of the impugned order passed by the Revisional Court that at the time when the complaint was dismissed for default, the complainant had already finished leading of evidence in support of his case. However, we are not concerned with the question as to whether or not the course adopted by the trial Magistrate in dismissing the complaint was proper. We are only concerned as to what is the appropriate remedy available to a complainant whose complaint has been dismissed in default.

8. The order of dismissal of complaint passed by the learned trial Magistrate simply records dismissal of the complaint but it does not record acquittal of the accused. Section 247 of J&K Code of Criminal Procedure, which is applicable to the instant case, provides the A! consequences of non-appearance of the complainant. It reads as under:-

"247. Non-appearance of complainant.-(1) If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1), shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

9. From a bare perusal of the aforesaid provision, it is