T.V. Nalawade, J. - (1.)THE first proceeding is filed against the judgment and order of Criminal Revision Application No. 108/2003 and this revision was filed by the present respondent No. 2 against the order made by the learned Judicial Magistrate, First Class, Jalgaon in S.C.C. No. 207/1997. The second proceeding is filed against the judgment and order of Criminal Revision Application No. 111/2003 and this revision was filed by the present respondent No. 2 against the order made by the learned Judicial Magistrate, First Class, Jalgaon in S.C.C. No. 211/1997. The third proceeding is filed against the judgment and order of Criminal Revision Application No. 110/2003 and this revision was filed by the present respondent No. 2 against the order made by the learned Judicial Magistrate, First Class, Jalgaon in S.C.C. No. 210/1997. The fourth proceeding is filed against the judgment and order of Criminal Revision Application No. 113/2003 and this revision was filed by the present respondent No. 2 against the order made by the learned Judicial Magistrate, First Class, Jalgaon in S.C.C. No. 213/ 1997 and the last proceeding against the judgment and order of Criminal Revision Application No. 112/2003 and this revision was filed by the present respondent No. 2 against the order made by the learned Judicial Magistrate, First Class, Jalgaon in S.C.C. No. 212/ 1997. All the cases were filed by respondent No. 2 for offences punishable under section 138 of the Negotiable Instruments Act and Section 420 of Indian Penal Code. These private complaints were dismissed by the learned Judicial Magistrate, First Class, under section 256 of the Code of Criminal Procedure,1973 and the order of dismissal was challenged in the Sessions Court by filing aforesaid criminal revision applications. Learned Additional Sessions Judge has set aside the orders of dismissal and has restored the matters. Heard learned counsel for the petitioner. Learned Additional Public Prosecutor is also heard. Though respondent No. 2, original complainant, was served she did not appear.
(2.)THE orders made, copy of which is on the record, shows that initially process was issued in private complaint for offence punishable under section 138 of the Negotiable Instruments Act. As there was no process issued for offence under section 420 of the Indian Penal Code, revision petitions were filed by the original complainant and those revision applications were allowed. Then in the year 1998 the process was issued for offence punishable under section 420, IPC also in all the private complaints. Though the matters were still described as summons cases, the cases were actually warrant cases. These complaints came to be dismissed due to absence of complainant on 19 -12 -2002 under section 256 of the Code of Criminal Procedure, 1973 (for short, "the Code").
The stage of the matter was evidence before charge. Learned counsel for the petitioner submitted that such order is possible in law and there is nothing wrong in the order of acquittal made by the learned Judicial Magistrate. It is surprising that all the criminal revision applications were decided on 17 -12 -2003, the matters were restored accordingly but the present proceedings came to be filed on 10 -10 -2012. This Court (presided over by other Hon'ble Judge) gave interim relief and stay was given to the decision of the Sessions Court by order dated 16 -10 -2012. It appears that there is service of notice of the proceeding on respondent No. 2, original complainant but after 19 -12 -2012 nobody got circulation in the matters and the proceedings were lying in the Department. Only due to specific order given by this Court the matters were listed for admission purpose and they were heard.

(3.)THE main contention of the learned counsel for the petitioner is that due to order of the Judicial Magistrate made under section 256 of the Code it needs to be presumed that the accused is acquitted and so the revision was not tenable in Sessions Court. The learned counsel has placed reliance on following reported cases : -
(i) : 2014 ALL MR (Cri) 991 (Mohd. Azim Sheikh v. Mehamuda). The facts of this case are totally different. The issue was of tenability of appeal against acquittal given in complaint case.

(ii) : AIR 1954 Bombay 239 (Husein Miya v. Chandubhai). In this case altogether different point was raised, about power and jurisdiction of Civil Court to set aside order of Mamalatdar made under the Bombay Tenancy Act.

(iii) : 1997 Bom. C.R. (Cri) 440 (Rahemat Khan v. State of Maharashtra) (Bombay High Court). The facts of this case were altogether different.

(iv) : AIR 2013 SC 395 (Subhash Chand v. State) (Delhi Administration). In this case, complaint for offence under the Prevention of Food Adulteration Act, 1954 ended in acquittal after trial. It is held that appeal lies under section 378(4) of the Code to High Court.

(v), 2009 ALL MR (Cri) 804 (Gajanan Chopade v. Mahatma Jyotirao Phule Gramin Bigarsheti Sahakari Patsanstha) (Bombay High Court -Division Bench). In this case complaint filed under section 138 of the Negotiable Instruments Act was dismissed under section 256 of the Code. It is held that appeal lies under section 378(4) of the Code.

(vi) : 2006 ALL MR (Cri) 1138 (Om Gayatri v. State of Maharashtra) (Aurangabad Bench). In this case the complaint was dismissed under section 256 of the Code. It is held that appeal lies under section 378 of the Code against the said order.

(vii) : 2008 Cri.L.J. 2123 (Vinaykumar v. Ramesh) (Aurangabad Bench). In a case filed under section 138 of the Negotiable Instruments Act, order under section 256 of the code was passed. It is held that appeal lies under section 378 of the Code and application under section 482 of the Code was not entertained. Similar was a case before the Nagpur Bench in Criminal application No. 129 of 2011 decided on 28 -7 -2011 and also before Aurangabad Bench in a case reported as : 2012 Bom. C.R. (Cri) 768 (Shantaram v. Dipak).

(viii) : 2013 ALL MR (Cri) 2713 (Kalpana v. The State of Maharashtra) (Aurangabad Bench). In this case also similar view is taken as is taken.

(ix) : 2012 Bom. C.R. (Cri) 707 (Kasabai v. Chandrabhagabai) (Aurangabad Bench). In this case appeal was filed against order of acquittal in a private complaint filed for offence under sections 447, 379, 427 etc. of the Indian Penal Code by dismissing the complaint for default. This court held that the acquittal was probably under section 256 of the Code. When discharge application was filed, acquittal order was given but no section of the Code was mentioned. It is held that the acquittal was not on merit and so to give opportunity to complainant the order was set aside. In this case point of tenability of criminal revision was not discussed and decided.

(x) : 2012 Bom. C.R. (Cri) 671 (Angad v. Kishan) (Aurangabad Bench). In an appeal filed against order of acquittal given in private complaint filed for offence under section 138 of the N.I. Act and section 420 IPC by dismissing the complaint under section 256 of the Code, point of tenability of revision was not considered and decided.

(xi) : JT 2002 (Suppl 1) SC 551 (Bhargav v. State of Maharashtra). Point involved was not about tenability of revision. Decision was given by forum having no jurisdiction and so the Apex Court set it aside by exercising its power.