KASAM Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, the applicant/accused takes an exception to the common order dated 26-6-2002 passed by the learned Additional Sessions Judge, Wardha, in Criminal Revision Nos. 16 of 1999 and 17 of 1999, whereby the learned Additional Sessions Judge allowed both the revisions and set aside the orders passed by the learned J. M. F. C. dismissing the private criminal complaints bearing Summary Criminal Complaint Case Nos. 1287/97 and 3646/97 instituted by respondent No. 2 under Section 138 of the Negotiable Instruments Act, for non-appearance of the complainant.

(2.) Mr. Daga, learned counsel for the applicant in both the applications, contended that both the private criminal complaints were fixed for hearing and recording of evidence on various dates. The first date of hearing was 15-7-1998 and thereafter the matter was adjourned from time to time and finally it was fixed for 23-12-1998 on which date the complainant/respondent No. 2 remained absent and none appeared on his behalf and, therefore, the learned Magistrate dismissed both the private criminal complaints under Section 256 of the Code of Criminal Procedure. He contended that respondent No. 2 being aggrieved by that order carried revision in the Sessions Court and the learned 2nd Additional Sessions Court allowed both the revisions and set aside the orders passed by the learned J.M.F.C. and restored both the criminal complaints on the file. He contended that in view of the provisions of Section 378(4) of the Code of Criminal Procedure, the remedy available to respondent No. 2 was to file an appeal against acquittal because as per Section 256 of the Code of Criminal Procedure, the result of dismissal of complaints for non appearance of the complainant was the acquittal of the applicant/accused of the offence punishable under Section 138 of Negotiable Instruments Act, which were being tried as summons cases. He contended that respondent No. 2 instead of availing the remedy of filing an appeal preferred a wrong remedy by filing revision and, therefore, the impugned orders cannot be sustained in law and the said orders are outright illegal and without jurisdiction. He contended that both these applications may kindly be allowed. In support of these contentions he relied on the decision of Delhi High Court in the case of Krishna Kumar Gupta v. Mohammed Jaros and Anr., 2002 (4) Crimes 242, and also on the decision of Himachal Pradesh High Court in H.P. Agro Industries Corporation Ltd. v. M.P.S. Chawla, 1997 (2) Crimes 591.

(3.) None present for respondent No. 2 though duly served.