KRISHNA KUMAR GUPTA Vs. MOHAMMAD JAROS

JUDGEMENT

(1.) This petition is filed under Section 482 Cr.P.C. for quashing the order of an Additional Sessions Judge, Karkardooma Courts, Delhi dated 22.8.2000 passed in a revision petition whereby he has set aside the order of a Metropolitan Magistrate dated 16.10.1999 and has restored the criminal complaint which was dismissed in default.

(2.) The facts are simple. The respondent filed a complaint for prosecution of the petitioner for committing offence under Section 138 of the Negotiable Instrument Act. It was fixed before the Magistrate on 16.10.1999 on which date the complainant did not attend hearing. Learned Magistrate dismissed the complaint. This order was challenged by the respondent in a revision petition preferred before the Additional sessions Judge. The Additional Sessions Judge though agreed with the petitioner accused that revision petition was not maintainable but was of the view that the court in exercise of the power vested by Section 397 Cr.P.C. may examine the legality and propriety of any findings, sentence and order so it can also look into any illegality of the proceeding by an inferior court. He held that the order impugned in the revision petition revealed an illegality and the defect in procedure and it suffered from manifest error in law which had resulted in the miscarriage of the justice. Therefore, he set aside the order dated 16.10.1999 and restored the complaint and directed the trial court to proceed with its trial in accordance with law.

(3.) The petitioner is aggrieved and has filed the instant petition. Counsel for the petitioner has argued that the complaint was dismissed in default by the learned Magistrate in exercise of the power given by Section 256 of the Cr.P.C. and upon dismissal of the complaint the accused stood acquitted and not discharged. He urged that only an appeal to the High Court will lie against the order of acquittal and resort to the revision under Section 397 Cr.P.C. before the Additional Sessions Judge was without jurisdiction. It was argued that the order of the learned Additional Sessions Judge entertaining the revision petition against an order which was appellable and restoring the criminal complaint, is patently illegal, erroneous and without jurisdiction.