SIVADASAN Vs. HARISH

JUDGEMENT

(1.) The petitioner is the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act, in S.T.No.1224/2015 on the file of the Chief Judicial Magistrate Court, Palakkad, instituted on the basis of a complaint instituted by the 1st respondent herein. The trial court had taken cognizance of the offence and thereafter issued summons to the accused who had entered appearance and thereafter the matter was posted for tendering of evidence of the complainant. The matter come up before the trial court on various occasions to tender evidence on 27.7.2016, 2.9.2016 and on 28.10.2016 and on these days the trial court found that the complainant was continuously absent, but there was application filed for adjournment. But the trial court adjudged that the said request for adjournment lacks bonafides and the same was rejected as the personal appearance of the complainant is required for evidence. Since the complainant continuously failed to appear to give evidence, no purpose will be served in continuing the proceedings and the learned Magistrate held that the accused will stand acquitted of the offence by virtue of the enabling provisions under Sec.256(1) of the Cr.P.C. That the order passed by the trial court under Sec.256(1) of the Cr.P.C is the one acquitting the accused and therefore the remedy is to file a special leave. Aggrieved by the said Anx-A order, the 1st respondent-complainant had preferred Crl.R.P.No.59/2016 before the Sessions Court, Palakkad, by taking recourse to the remedy conferred under Sec.397 of the Cr.P.C. The Sessions Court, Palakkad, had issued notice to the respondent therein (accused). The respondent therein (accused) took up the contention that revision under Sec.397 is not maintainable in view of the bar engrafted under Sec.401(4) r/w Sec.399(1) of the Cr.P.C inasmuch as to the extent it has provided that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. It was also contended that the remedy of the complainant to challenge the impugned judgment of acquittal rendered by the trial court in a private complaint is to prefer special leave under Sec.378(4) of the Cr.P.C., so as to secure special leave of the High Court to file Criminal Appeal to impugn such judgment of acquittal rendered by the trial court. Since such an appellate process is conferred by the Cr.P.C, though hedged with a condition for special leave, the bar as stated above would apply and therefore the Sessions Court does not have the jurisdiction to entertain the above said revision. The Sessions Court overruled the said contention of the respondent therein (accused) on the basis of the judgment of the Apex Court in Maj. Genl. A.S.Gaauraya & anr. ] S.N.Thakur & anr. reported in AIR 1986 SC 1440, which in turn had relied on another judgment on the Apex Court in Bindeshwari Prasad Singh v. Kali Singh reported in AIR 1977 C 2432. On the basis of the said rulings, the Sessions Court observed that the remedy of a complainant to challenge an order of acquittal under Sec.256(1) of the Cr.P.C is to move the Sessions Court or High Court in revision and accordingly held that the Sessions Court has jurisdiction to entertain the revision on merits and on the merits of the matter, the Sessions Court has held that the lapse of the complainant in not appearing before the trial court could be condoned subject to payment of cost and subject to such condition the complaint was remitted to the trial court for further proceedings in the trial. A copy of the said revisional order passed by the Sessions Court on 15.3.2017 in S.T.No.59/2016 has been produced as Anx-B. The accused has now challenged the legality and correctness of the impugned Anx-B order by filing the present petition by invoking the inherent powers conferred under Sec.482 of the Cr.P.C.

(2.) Sri.Sojan Micheal, learned Advocate, was appointed as Amicus Curiae in this case to assist this Court in the matter. Heard Sri.K.Abdul Jawad, learned counsel appearing for the petitioner- accused, Sri.M.P.Liju, learned counsel appearing for the 1st respondent- complainant, Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State and Sri.Sojan Micheal, learned Amicus Curiae.

(3.) The short point that arises for consideration in this case is as to whether an order of acquittal rendered by the trial court under Sec.256(1) of the Cr.P.C in a private complaint proceedings could be challenged in revision either before the Sessions Court or before the High Court in terms of Sec.397 of the Cr.P.C and other allied provisions.