JUDGMENT

This appeal is filed challenging the dismissal of the private complaint PCR No.247/2015 by order dated 24.12.2016 by Prl. Civil Judge & JMFC, Anekal, Bangalore Rural, wherein the complaint is dismissed for non-prosecution.

2. Heard Sri. Shivaraju M.K., for the appellant and Sri. Sagar G. Nahar for Sri. S.F. Goutam Chand, learned counsel for the respondent.

3. Learned counsel for the appellant after query from Bench as to how the appeal is maintainable in view on the impugned order under challenge, he filed a memo stating that the appellant may be permitted to convert this criminal appeal into criminal petition under section 482 of The Code of Criminal Procedure, 1973( hereinafter for short 'Cr.P.C.'). Learned counsel for the appellant argued that since the complaint is dismissed for default at PCR stage, the appeal may not be maintainable and prayed to pass appropriate order.

4. Learned counsel for the appellant also relied on the judgment of the Hon'ble Supreme Court in V.K. Bhat v. G. Ravi Kishore and Another, (2016) 13 SCC 243, wherein, the dismissal of the complaint under section 256 Cr.P.C.

amounts to acquittal and appeal lies.

5. Against this, learned counsel for the respondent argued that the appeal is not maintainable as there is no acquittal of the accused under section 256 Cr.P.C. Therefore, the provision of section 378 Cr.P.C. is not applicable. At the most, revision under section 397 Cr.P.C. could have been filed by the appellant either before the appellate court or before the High Court. In support of his arguments, he relied upon the decision of the Delhi High Court in the case of Kalpana Tyagi v. Sneh Lata Sharma, 2003 (68) DRJ 14, wherein the Delhi High Court considered the distinction regarding complaint dismissed prior to summoning of an accused and complaint dismissed subsequent to the summoning of the accused and it is held that if a complaint is dismissed prior to summoning of an accused, the order may be challenged by filing a revision. Hence, learned counsel argued that neither the appeal nor the petition under section 482 Cr.P.C. are maintainable. Hence, he prayed to dismiss the appeal.

6. I have perused the impugned order and also the order sheet of the trial court produced in this case.

7. It is seen from the records of the Trial Court that the complainant presented the complaint on 14.07.2015 under section 200 Cr.P.C. read with sections 138 and 142 of the Negotiable Instruments Act, 1881. (hereinafter for short referred as 'N.I Act'). Learned Addl. Civil Judge & JMFC, Anekal has endorsed on the said complaint as under:-

"Compt is present.

Perused. Cognizance taken.

Register the PC. Call on for S/St.

01.08.2015.

Sd/-

14.07.2015

8. The above endorsement indicates that after perusing the complaint, learned JMFC has taken cognisance and ordered that the complaint be registered as a private complaint. It is also seen that the said complaint was registered as PCR No.247/2015. Thereafter, the case is posted on several dates for recording the sworn statement of the complainant. Ultimately on 24.12.2016, the complaint came to be dismissed for non-prosecution. The order dated 24.12.2016 dismissing the complaint reads as under:-

24.12.2016 " Compt. and counsel absent.

For Sworn Statement-call latter -case called out at 5.20 p.m.-complainant absent- counsel absent- since 01.08.2016 neither complainant present nor adduced evidence - nor anybody represented - However, it appears that the complainant is not interest to proceed with the case -

hence the complaint is dismissed for non-prosecution."

9. The above order shows that the case is at the stage of still recording the sworn statement of the complainant. Learned JMFC has not come to any conclusion, either to issue process or to dismiss the complaint on the basis of the material placed by the complainant. The complaint is dismissed as there is no representation. The trial court felt that the complainant is not interested to proceed with the case. Accordingly, it has dis