ANSAMMA DANIEL Vs. STATE OF KERALA AND ANOTHER

JUDGEMENT

(1.) The petitioner is accused for offence punishable under Sec.138 of the Negotiable Instruments Act in C.C. No. 1728/2009 on the file of the Judicial First Class Magistrate's Court-I, Ernakulam, on the basis of the complaint filed by the 2nd respondent herein. The dishonoured cheque dated 10.6.2009 involved in this case is for Rs. 5 lakhs. It is averred that the trial court has posted the case for evidence several times and due to absence of the complainant in all the occasions, the trial court acquitted the petitioner (accused) for the abovesaid offence by virtue of the enabling powers conferred under Sec. 255(1) of the Cr. P. C.. Anx.A-3 is the judgment in that regard rendered by the trial court on 16.12.2011. aggrieved by Anx.A-3 judgment of acquittal of the trial court, the 2nd respondent complainant had filed Cri. R. P. No. 87/2012 before the Court of Session Judge, Ernakulam. The Sessions Court as per the impugned Anx.A-4 order dated 18.11.2014 has set aside the impugned judgment of acquittal and has directed restoration of the case to the file of the trial court and the trial court has been ordered to afford reasonable opportunity to the revision petitioner complainant to adduce evidence in support of his case and thereafter dispose of the case, in accordance with law, etc. Anx.A-4 is the revisional order in that regard passed by the Sessions Court. It is this order that is under challenge in this petition.

(2.) Heard Sri. S. K. Ajaya Kumar, learned counsel appearing for the petitioner (accused), Sri. P. A. Martin Roy, learned counsel appearing for R-2 (complainant) and Sri. Justin Mathew, learned Prosecutor appearing for R-1 State.

(3.) The main ground on which the impugned Anx. A-4 revisional order has been challenged is that the said order has been passed without jurisdiction by the Sessions Court. It is argued by the petitioner that the remedy of a complainant, which is aggrieved by a judgment of acquittal rendered by a trial court in a complaint like the present one, is to prefer an application seeking special leave of this Court under Sec. 378(4) of the Cr. P. C. for instituting criminal appeal so as to challenge the said judgment of acquittal, as held by the Division Bench of this Court in the case in Omana Jose v. State of Kerala, 2015 ACD 434 (Ker). On this basis, it is contended that since the aggrieved complainant has a remedy in terms of S. 378(4) of the Cr. P. C., the revision is barred by virtue of the provisions engrafted in S. 401(4) of the Cr. P. C.