- (1.) THIS Revision is preferred by the original accused impugning the order dated 19.3.1997 of the 3rd Additional Sessions Judge, Nagpur, under which the learned Additional Sessions Judge allowed the revision filed by the non-applicant No.2/complainant against the order of dismissal of complaint and discharge of the accused by the trial Court in Complaint Case No.28/94.
(2.) THE non-applicant No.2 filed a complaint case against the applicant/accused on 14.1. 1994 for having committed offences under section 138 read with section 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the NI Act" ). THE complaint was registered and the learned Magistrate issued process under section 138 of the NI Act against the applicant/accused. It so happened that when on the date, i. e. , 5.4.1995, the case was fixed for hearing, the non-applicant/complainant remained absent. It was kept back till 1. 30 p. m. , in the afternoon and as none appeared for the non applicant/complainant, it came to be adjourned to 6.4.1995. On that day, it appears that the Court waited for the non applicant/complainant till 4.00 p. m. , and as none appeared for him till that time, the complaint came to be dismissed for want of prosecution and the accused was discharged. This order was impugned by the non applicant/complainant by preferring a revision before the Court of sessions at Nagpur, which came to be registered as Criminal Revision No.924/95. The revision was heard and allowed in favour of the non applicant/complainant by the impugned order. It is submitted by the applicant/accused that the said order allowing the revision by the learned Additional Sessions Judge was without any jurisdiction and, therefore, is invalid and non est. It is submitted that the learned Magistrate has passed an order under section 256 (1) of the Criminal Procedure Code, 1973 as the complainant did not appear, dismissed the complaint and discharged the accused, which order ought to have been of acquittal. It is submitted that the complainant has wrongly invoked the revisional jurisdiction of the Court of Sessions in the matter; though in the facts and circumstances of the case and particularly when the complaint had been dismissed for absence of the complainant and its non prosecution, the accused was entitled for acquittal, the only remedy available to the complainant was by way of an appeal to the High Court by special leave of the Court under section 378 (4) of the Criminal Procedure Code, 1973 and the revision is expressly barred under section 401 (4) of the said Code.
(3.) MR. Mohta, learned Counsel for the applicant/accused has relied upon the following cases : (1) Swaroop Singh V. Emperor (A. I. R. (35) 1948 Allahabad 135: (2) Municipal Committee, Amritsar, through its Executive Officer. v. Shri Labhu Ram and others (1970 Cri. L. J. 553) (Punjab & Haryana High Court); (3) Supinder Singh. v. Provident Fund Inspector (II (1998) CCR 83) (Punjab & Haryana High Court); and (4) Thampi. v. Sadanandan (II (1998) CCR 213) (Kerala High Court); and submitted that all these authorities are consistent on one point that in case the complaint is dismissed under section 256 (1) of the Criminal Procedure Code, 1973, then the consequential order would be acquittal of the accused and not discharge, and even if the trial Court has passed an order of discharge, it would mean an acquittal and, therefore, in no case, the complainant had a remedy of invoking the revisional powers of the Court of Sessions and ought to have filed an appeal before the High Court. In the circumstances, it is submitted that the impugned order deserves to be quashed and set aside. Mr. Bhide, learned Counsel for the non applicant No.2/complainant, submits that the complainant was justified in invoking the revisional powers of the Court of Sessions as the order was passed by the learned Magistrate which clearly recorded that the applicant/accused has been discharged and, therefore, against an order of discharge, the only remedy available to the complainant was to file a revision.;