Dismissal of a complaint for non-prosecution under Section 256(1) of the CrPC amounts to acquittal, allowing only an appeal and barring revision.

ORAL ORDER

The petitioner is before this Court calling in question an order dated 09.11.2022 passed by VII Additional District and Sessions Judge, Tumkuru in Crl.R.P.No.35/2023.

2. Heard Sri. V.B. Siddaramaiah, learned counsel appearing for the petitioner and Sri. N. Suresh, learned counsel appearing for the respondent.

3. The petitioner is the accused. The respondent is the complainant. The proceedings in C.C.No.58/2016 registered for offences punishable under Section 138 of Negotiable Instruments Act, 1881 ('the NI Act' for short) comes to be dismissed for its non-prosecution by an order dated 14.02.2023, thereby discharged the accused. The matter was at the stage of evidence. The complainant failed to appear. The complainant then challenges the said order of dismissal for its non-prosecution and the consequent acquittal before the Sessions Court in Crl.RP.No.35/2023. The learned Sessions Judge allows the criminal revision petition and remits the matter back to the concerned Court for consideration of a fresh. The accused is before this Court on the score that the revision petition was not maintainable, as the discharge of the accused amounted to acquittal and if it is an acquittal, an appeal ought to have been preferred and not a revision petition. The issue whether a dismissal for non-prosecution of a proceeding under of the NI Act would amount to acquittal of the accused and if it amounts to acquittal of the accused, whether an appeal should be preferred or a revision is maintainable is no longer res integra.

4. The Apex Court, in the case of V.K. BHAT v. G. RAVI KISHORE , 1(2016) 13 SCC 243, has held as follows:

“…. …. ….

5. An application was filed before the High Court by the appellant on the ground that a second revision is not maintainable. The High Court held that the Metropolitan Sessions Judge after being satisfied that the earlier order was passed only on technicalities, had entertained the second revision, and, therefore, the order passed by the Metropolitan Sessions Judge was not illegal. Challenging the said decision of the High Court, this special leave petition has been filed.

6. The learned counsel appearing on behalf of the appellant raised the point before us that the second revision petition is not maintainable and he further drew our attention to Section 256 of the Criminal Procedure Code and submitted that dismissal in default tantamounts to acquittal and, therefore, the only remedy available to the respondent complainant was by way of appeal under Section 378 (4) CrPC . Further, the respondent could have the benefit of filing a second revision petition. He submitted that the second revision petition is not maintainable.

7. The learned counsel duly took us to Sections 256 , 378, 397(3), 399 and 401(4) of the Code of Criminal Procedure and submitted that in accordance with Section 256 , if the summons has been issued on complaint, the Court has power to dismiss the said complaint when a complainant does not appear before the court to pursue the complaint or for any other reason, and in such a case, the Magistrate shall acquit the accused. Therefore, in the instant case, the dismissal of the complaint tantamounts to acquittal of the appellant.

8. The learned counsel for the appellant further contended that the procedure laid down in the Code would also show that under Section 397(3), where both the Sessions Judge and the High Court have concurrent powers, second revision would not be competent. He further contended that under Section 399(3), where any application for revision is made before the Sessions Judge, the decision of the Judge thereon in relation to such person shall be final and no further revision shall be entertained by the High Court or any other court. He further submitted that under Section 401(4) CrPC , where an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained. Therefore, he subm