B. Lakshmaiah vs Veeramalli Nagesh and another

The complainant in CC No. 239 of 1994 on the file of the X Metropolitan Magistrate, Secunderabad, is the appellant herein. The 1st respondent herein (referred as respondent hereinafter) is the accused in the said case.

The facts in brief resulting in filing of this appeal are as under:

The appellant-complainant filed a private complaint for the offences punishable u/s 138 of Negotiable Instruments Act. On 13-5-1996, the accused was present and the complainant was absent. He was absent till 4 p.m. on that day and there was no representation on behalf of the complainant. His Counsel was also absent. Under those circumstances, the learned Magistrate acquitted the accused u/s 256 Cr.P.C. Aggrieved by that Order, the complainant preferred the revision u/s 397 Cr.P.C. to the Court of Metropolitan Session Judge, Hyderabad and the same was taken on the file as Criminal Revision Petition No.77 of 1996. The learned Metropolitan Sessions Judge by his order dated 20-11-1996 dismissed the said revision petition. The learned Metropolitan Session Judge disbelieved the version of the complainant that he was not in a position to attend the Court on 13-5-1996 as he was suffering with Bronchitis and diabetes and the learned Judge also disbelieved the medical certificate dated 12-5-1996 produced to that effect. Thereafter the complainant has filed this appeal together with Cr!.M.P.No.816 of 1997 seeking special leave of this Court to prefer an appeal against the order of acquittal of the respondent-accused by the order dated 13-5-1996 made in CC No.239 of 1994 which was confirmed by the Metropolitan Sessions Judge, Hyderabad by order dated 20-11-1996 made in Crl. Revision Petition No.72 of 1996. This Court granted special leave sought for by the order dated 18-8-1997. On the same day, the appeal was also admitted as Criminal Appeal No.833 of 1997.

As seen from the Memorandum of Appeal, the appellant-complainant herein prays this Court "to allow the appeal setting aside the order dated 20-11-1996 made in Criminal Revision Petition No.77 of 1996 by the learned Metropolitan Sessions Judge, Hyderabad". In effect, the complainant has preferred this appeal to set aside the order of the learned Metropolitan Sessions Judge, Hyderabad, passed in Criminal Revision Petition No.77 of 1996 confirming the order of acquittal passed in CC No.239 of 1994.

The learned Counsel for the respondent-accused submits that no appeal lies against an order passed by a Metropolitan Sessions Judge in criminal revision petition and it amounts to a further revision preferred to this Court which is barred u/s 399(3) Cr.P.C. The learned Counsel for the appellant-complainant on the other hand submits though it is mentioned as an appeal against the revisional order of the Metropolitan Sessions Judge, it is in fact an appeal against the order of acquittal passed u/s 256 Cr.P.C. in CC No.239 of '' 1994 and as such the appeal is maintainable and that by mistake revision had been preferred to the Sessions Court instead of preferring an appeal to this Court. The learned Counsel for the respondent-accused submits that u/s 378(5), a period of sixty (60) days has been fixed for obtaining special leave to appeal to this Court from an order of acquittal and it has not been done so in this case and that no application has been filed u/s 5 of the Limitation Act to condone the delay in preferring the appeal to this Court.

If the present petition is construed as a revision against the revisional orders of the Metropolitan Sessions Judge in Criminal Revision Petition No.77 of 1996 though styled as criminal appeal, definitely it is barred u/s 399(3) Cr.P.C.

Section 399(3) Cr.P.C. reads as under:

Section 399(1)... Not necessary...

(2)... Not necessary...

(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.

Thus the statutory provision is very clear that no second revision lies to the High Court against the order of the Sessions Judge passed in a revision case and the order of the learned Sessions Judge has become final.

In Dharampal and others Vs. Smt. Ramshri and others, , their Lordships of Supreme Court in para 4 have laid the law thus:

"The question that falls for our consideration now is whether the High Court could have utilised the power u/s 482 of the Code and entertained the second revisional application at the instance of the 1 st respondent. Admittedly, the 1st respondent has preferred a criminal application being Criminal Revision Case No.7180 of 1978 to the Sessions Court against the order passed by a Magistrate on 17-10-1975 withdrawing the attachment. The Sessions Judge had dismissed the said case on 4-5-1979. Section 399(3) of Cr.P.C. bars the second revision application by the same party. It is now well settled that the inherent powers u/s 482 of the Code cannot be utilised for exercising powers which are barred by the Court. Hence the High Court has clearly erred in entertaining the second revision at the instance of the 1st respondent. On this short ground itself, the impugned order of the High Court can be set aside."

Again in Deepti alias Arati Rai Vs. Akhil Rai and Others, , their Lordships of Supreme Court held thus:

"Second revision application, after the dismissal of first one by the Sessions Court is not maintainable and that inherent powers u/s 482 of the Code cannot be utilised for exercising powers which are expressly barred by the code."

In the instant case, the learned Magistrate acquitted the accused u/s 256 Cr.P.C. on the failure of the complainant to be present in Court on 13-5-1996 when the case was posted for recording his evidence. The complainant preferred the criminal revision against the said order of acquittal to the learned Metropolitan Sessions Judge in Criminal Revision Case No.77 of 1996 and the same has been dismissed confirming the order of the learned Magistrate. Moreover, the said order of the learned Metropolitan Sessions Judge is on merits. Thus in the light of the above two decisions of the Supreme Court, the present application though challenging the said order of the Metropolitan Sessions Judge and though styled as criminal appeal, is not maintainable as it has become final.

Even if the present application is construed as an appeal against the order of acquittal dated 13-5-1996 passed by the learned Magistrate, it is barred by time. The order of acquittal was passed on 13-5-1996, but the appeal was filed on 26-2-1997 i.e., beyond the period of 60 days from the date of impugned order as prescribed u/s 378(5) Cr.P.C. Admittedly, no application has been filed u/s 5 of the Limitation Act to condone the said delay in preferring the appeal.

The learned Counsel for the appellant-complainant relied upon the decision in Associated Cement Company Limited v. Keshavanand JT 1997 (10) SC 165. That decision has no application to the facts in this case. In that case also, the complaint was dismissed u/s 256 Cr.P.C. for the absence of the complainant on 24-8-1996 and the complainant was already examined as a witness besides other witnesses for the prosecution. Hence, their Lordships of Supreme Court held that the Magistrate ought to have passed orders on merits as there is already evidence on record on behalf of the prosecution instead of dismissing the complaint u/s 256 Cr.P.C. In the instant case, as admitted by both sides, the matter was posted for examination of the complainant himself and his witnesses to 13-5-1996 and on that day both the complainant, his witnesses and his Counsel were absent, though the matter was waited till 4 p.m. Under those circumstances, the learned Magistrate resorted to Section 256 Cr.P.C. and acquitted the accused.

In the light of my above discussion, I do not find any irregularity or illegality in the impugned order of the learned Magistrate as confirmed by the Metropolitan Sessions Judge in Crl. Revision Petition No.77 of 1996. Hence this appeal is dismissed.