KISHANCHAND GULBANI Vs. ROHIT TARACHAND

JUDGEMENT

(1.) Petitioner, original accused, has approached this court to challenge the order dated 31.8.1998 of learned Additional Sessions Judge, Ahmedabad by which revision application of original complainant was allowed and Criminal Case No.720 of 1989 was revived with a direction to hold denovo trial.

(2.) Original complainant, opponent No.1 herein, had filed a complaint on 20.3.1989 for the offences punishable under sections 447 and 453 of the Indian Penal Code, 1860 against the present applicant and that complaint, which was registered as Criminal Case No.720 of 1989, was ordered to be dismissed on 12.4.1993 due to absence of the complainant and his advocate. That order was, however, stated not to have been signed. But thereafter, on 26.3.1996, again evidence of the complainant was closed and, upon an application being made by the accused, order dated 22.11.1996 acquitting him under the provisions of sub-section (1) of section 255 of the Code of Criminal Procedure, 1973 (for short, "the Code") was made by learned Metropolitan Magistrate. That order was challenged in revision application by the original complainant and the impugned order came to be passed reversing that order on the basis, inter alia, that the order of acquittal could not have been passed under section 255 (1) since the matter was not decided on merits and the section appeared to have been misquoted.

(3.) Learned counsel Mr.Gupta, appearing for the applicant herein, submitted that the revision application entertained by the learned Additional Sessions Judge was not maintainable as remedy of appeal was available to the original complainant. Therefore, the impugned order was lacking in jurisdiction, according to his submission. He further submitted that, in view of absence and lack of interest of the original complainant as recorded in the order of trial court, the only course open for the trial court was to acquit the accused either under the provisions of section 255 or section 256 of the Code. He submitted that, even on merits, provisions of section 258 of the Code did not apply in the facts of the case and a serious error had crept in in the impugned order in referring to the provisions of section 258. The learned counsel relied upon the judgment of this Court in Yogesh Babulal Shah v. K.S.Bhasin [2005 (3) GLH 553] wherein it was clearly held that, as per the settled legal position, the order passed by the learned Chief Judicial Magistrate dismissing the complaint for want of prosecution and non-availability of complainant in a private complaint had an effect of acquittal. And, revision application cannot be entertained as such application would not lie since the complainant ought to have preferred appeal against the order of acquittal seeking appropriate leave of the court.