SAUNDHI BUILDERS & DEVELOPERS Vs. STATE

JUDGEMENT

(1.) By this petition under Section 482 of the Code of Criminal Procedure, 1973('Cr.P.C.' in short) the petitioners have prayed for the setting aside of the order dated 27 th January, 2011 passed by the learned Additional Sessions Judge in revision petition no. 69/10 under Section 397 Cr.P.C. whereby the complaint case no.5757/06 filed by respondent no.2 herein under Section 138 of the Negotiable Instruments Act,1881, which was dismissed by the learned Metropolitan Magistrate on 14th July, 2010 due to non appearance of the complainant, was ordered to be restored.

(2.) The petitioner no.1 Company and petitioner no.2 who is one its Directors were the two accused in the complaint case and they have felt aggrieved by the order of the revisional Court restoring the dismissed complaint, which dismissal according to them had resulted in their acquittal since the trial Magistrate had after taking cognizance summoned them as accused, without giving any notice to them of the revision petition filed by the complainant-respondent no.2 against the Magistrate's order dismissing his complaint.

(3.) Notice of this petition was given to the respondent no.2- complainant who entered appearance through his counsel who simply supported the impugned order of the revisional Court. Counsel for the petitioners had contended that since the trial Magistrate had taken cognizance of the offence under Section 138 of the Negotiable Instruments and after recording the pre-summoning evidence of the complainant had summoned them the petitioners as accused vide order dated 13th September,2007 and then dismissed the complaint vide his order dated 14th July,2010 and so that order, which was to their benefit, could not be set aside by the revisional Court without giving notice to them of the revision petition filed against the dismissal order by the complainant. It was also submitted that the revision petition even otherwise was not maintainable and only appeal could be filed against that order since the effect of the order of dismissal of the complaint was acquittal of the petitioners under Section 256(1) Cr.P.C. even though it was not specifically mentioned by the Magistrate in that order, because they had already been ordered to be summoned as accused when the complaint was dismissed in default.