G KAMALA Vs. UMESH SHETTY

JUDGEMENT

(1.) This Revision Petition is filed by the accused/petitioner calling in question the legality and correctness of the Judgment and order passed by the Fast Track Court, Udupi (Sessions Judge) in Crl. Revision Petition No.53/2010 whereby the order of the III Addl. Civil Judge (Jr.Dn) and JMFC at Udupi in CC No.6432/2007 has been set-aside, restoring the complaint filed by the respondent-complainant in PC No.643/2007 and CC No.6432/2007 to file.

(2.) The respondent herein had filed a private complaint on the file of the learned JMFC, Udupi against the petitioner/accused alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('Act' for short). It was alleged that the petitioner had approached the respondent/complainant and sought for hand loan of Rs. 30 lakhs and accordingly the complainant has paid the sum of Rs. 30 lakhs to the accused on 16.1.2006 and towards the discharge of the said liability, the accused has issued the cheque bearing No.439685 dated 15.7.2007 drawn on Syndicate Bank, Anelkal, but the said cheque, on presentation, came to be dishonoured. The learned Magistrate had taken cognizance of the offence and ordered to register the case. Thereafter learned Magistrate was pleased to issue summons to the petitioner and petitioner entered appearance. The said complaint came to be dismissed for non-prosecution on 14.5.2010 when the matter was listed for cross examination of the complainant. Aggrieved by the said order of dismissal, complainant preferred revision petition under Section 397 of the Cr.P.C. before the learned Sessions Judge, Udupi, who allowed the revision petition setting aside the order of dismissal passed by the learned Magistrate and the complaint was restored to file. Aggrieved by the same, accused has filed this revision petition.

(3.) Learned counsel for the respondent at the outset raised a preliminary objection regarding the maintainability of the revision petition under Section 397 Cr.P.C. against the order passed by the learned Sessions Judge under Section 397 of Cr.P.C. Inviting the attention of the court to Section 397(3) of Cr.P.C., learned counsel submitted that no second Revision Petition is maintainable against the order passed under Section 397 of Cr.P.C. In addition to this preliminary objection, arguments were also addressed by the respondent/complainant on the jurisdiction of the learned Sessions Judge in entertaining the revision petition. Before adverting to the other points, it is appropriate for this court to first examine the maintainability of the Revision Petition under Section 397 of Cr.P.C. against the order passed by the learned Sessions Judge under Section 397 of Cr.P.C.