JUDGMENT :

Heard Mr. Narendra Kumar Singh, learned Counsel for the applicant, Ms. Fatima Anjum, Advocate holding brief of Mr. Syed Ahmed Faizan and Mr. D.K. Srivastava, learned A.G.A. for the State.

2. This application under Section 482 of the Code of Criminal Procedure, 1973 (‘Code' for short) is directed against an order of the Judicial Magistrate, Court No. 5, Farrukhabad dated 10.11.2022 passed in Complaint Case No 59 of 2022, under Section 138 of the Negotiable Instruments Act, 1881, dismissing the complaint under Section 256 of the Code.

3. A preliminary objection has been raised by Ms. Fatima Anjum that this application under Section 482 of the Code is not maintainable, because the impugned order has been passed by the Magistrate under Section 256 of the Code, which amounts to a judgment of acquittal, the remedy whereagainst is an appeal under Section 378(4) of the Code by special leave of this Court. She submits, therefore, that this application under Section 482 of the Code is not maintainable.

4. Shorn of unnecessary detail, the facts giving rise to this application under Section 482 of the Code are that the applicant instituted a complaint in the Court of the Chief Judicial Magistrate, Farrukhabad on 15.03.2018, giving rise to the Complaint Case No. 59 of 2022, under Section 138 of the Negotiable Instruments Act, 1881.

5. The complaint was about the dishonour of a cheque dated 20.01.2018 worth Rs. 2,00,000/-, bearing no. 183239, issued by the opposite party no. 2, drawn on the Axis Bank, Hewett Road, Lucknow dated 20.01.2016. The cheque when presented by the applicant was allegedly dishonoured. After service of the necessary statutory notice which remained uncomplied with for the period of time specified by law, the impugned complaint was instituted.

6. The second opposite party was summoned to stand his trial by the learned Magistrate vide order dated 04.05.2022. There is an averment to this effect in paragraph no. 9 of the affidavit. Later on, by the order impugned dated 10.11.2022, the complaint was dismissed in the absence of the complainant under Section 256 of the Code.

7. It is urged by learned Counsel for the second opposite party in support of the preliminary objection that this petition under Section 482 of the Code is not maintainable because an order dismissing a complaint under Section 256 of the Code is a judgment of acquittal against which the remedy of an appeal is envisaged under Section 378 of the Code.

8. In support of her submissions, Ms. Fatima Anjum, learned Counsel for opposite party no. 2 has placed reliance upon a decision of the Himachal Pradesh High Court in H.P. Agro Industries Corporation Ltd. v. M.P.S. Chawla, 1996 SCC OnLine HP 54. In H.P. Agro Industries Corporation Ltd. (supra) it has been held:

11. There is no denying that the dismissal of the complaint in default under section 256 of the Criminal Procedure Code, entails the acquittal of the accused. Once an accused has been acquitted of the offence, the law provides a remedy by way of an appeal against the order of acquittal. Once a remedy by way of appeal is available to the petitioner under section 378(4) of the Criminal Procedure Code, on the failure of the petitioner to avail of such a remedy, this court is not to exercise the inherent powers for interfering with the impugned order.

9. Mr. Narendra Kumar Singh, learned Counsel for the applicant in rebuttal of the preliminary objections has placed reliance upon a decision of this Court in Sunil Mishra v. State of U.P. and another, 2015 (90) ACC 169 to submit that an application under Section 482 of the Code is maintainable, where the order dismissing the complaint under Section 256(1) of the Code is passed without recording reasons for not adjourning proceedings in the complainant's absence.

10. Mr. Narendra Kumar Singh, Advocate has emphasized that the decision of this Court in Sunil Mishra (supra) is a binding precedent whereas the Himachal Pradesh High Court's decision is nothing more