N.A.BRITTO, J. - (1.) HEARD Mr. A. R. Kantak, the learned Counsel on behalf of the applicant / complainant. The respondents have chosen to remain absent.
(2.) THE short question before this Court is whether this revision petition is to be entertained or not in the light of the provisions of S.401 (4) of the Code of Criminal Procedure, 1973(Code, for short) which reads as follows: "Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who would have appealed". The applicant herein is the Complainant in CC No. 271/0A/99/B and the said complainant was prosecuting the respondent / accused under S.138 of the Negotiable Instruments Act, 1881. The complaint came to be dismissed on 22/08/2005 as the complainant remained absent before the Court on that day and the accused came to be acquitted under S.256 of the said Code.
(3.) IN support of his submission that a revision could be entertained by this Court against the said Order of acquittal under S.256 of the Code, Mr. Kantak has placed reliance on two decisions. The first is the case of Rabindra Behera V. Sridhar Samantray and others (1996 CriLJ 832). The second is the case of Sangappa V. Tenginakai v. The State (2001 (2) GLT 29). In the first case, the question which came for consideration is whether a wrong committed by the Court resulting in miscarriage of justice could be corrected and the complaint could be restored by the Court in exercise of revisional jurisdiction. It was contended before the High Court that by virtue of sub-s.(4) of S.401 of the Code since law provided for filing of an appeal, no proceeding by way of revision could be entertained. However, the Court proceeded to place reliance under sub-s.(5) of S.401 of the Code and held that since Sub-S.5 of S.401 of the Code provided that in case a revision was filed under erroneous belief that no appeal against the impugned order could be filed and it was in the interest of justice that a revision could be treated as an appeal and dealt with accordingly.;