DHIRAJ SINGH Vs. SARDAR SINGH

JUDGEMENT

(1.) BEING aggrieved by the order dated 3.12.2008 passed by Sessions Judge, Indore in case No. 574/08 whereby the order dated 17.6.2008 passed by JMFC, Indore in M.Cr. C. No. 0/08 whereby the application filed by the respondent under Section 256(1), Cr.P.C. for restoration of criminal proceedings of Criminal Case No. 0/08 which was dismissed on 11.5.2007, was dismissed, was set aside with a direction to the learned Trial Court to restore the criminal complaint filed by the respondent and decide the same on merits, the present petition has been filed.

(2.) SHORT facts of the case are that the respondent filed a complaint against the petitioner under Section 138 of Negotiable Instruments Act (which shall be referred hereinafter as an "Act"), wherein it was alleged that petitioner has issued a cheque of Rs. 78

(3.) LEARNED Counsel for the petitioner argued at length and submits that the impugned order passed by the learned Sessions Court is illegal, incorrect and deserves to be set aside, it is submitted that learned Sessions Court was having no jurisdiction to entertain revision petition. It is submitted that even if respondent was aggrieved by the order dated 11.5.2007 whereby the criminal complaint filed by the respondent was dismissed, then too, remedy was available to the respondent under Section 378(4), Cr.P.C. It is submitted that in the facts and circumstances of the case learned Trial Court has rightly dismissed the application which has wrongly been entertained by the learned Sessions Court in revision petition. Learned Counsel placed reliance on a decision of Kerala High Court in the matter of M.K. Thampi v. Sadanandan, 1998 Cri.LJ. 784, wherein Kerala High Court has held that against the order of acquittal revision filed before Sessions Judge is not maintainable. Further reliance is placed on a decision in the matter of H.P. Financial Corporation v. Ms. Continental Spinners Ltd., 2004(1) DCR 295, wherein in a case where the complaint was dismissed in default. Himachal Pradesh High Court has held that the impugned order has the effect of acquittal and remedy for complainant was to present appeal. It was further alleged that complainant/petitioner having failed to appeal, revision is not maintainable.