Vinaykumar Maliwal vs Ramesh Saboo

V.R. Kingaonkar, J.—By this common judgment both the applications are being disposed of together. The applicant had filed two private complaint cases for offence punishable u/s 138 of the Negotiable Instruments Act. The complaint cases were registered as SCC No. 3195/98 and SCC No. 3197/98. They were posted for hearing on 24.2.2003. When the Criminal cases were called out, the complainant was found absent and hence, order of dismissal was passed. The learned C.J.M. discharged the accused/respondent for want of prosecution. It appears that in the latter part of the day, advocate for the complainant submitted an application to recall the order of dismissal on the ground that the complainant/applicant had gone out of station for urgent personal work and the application could not be submitted well in time due to rush of work.

The Respondent objected the application on the ground that absence of the complainant was unjustified. The objection raised further was that the Criminal Court had no power to restore the complaint cases by reviewing its own order of dismissal. The learned Chief Judicial Magistrate, Nanded considered arguments at Bar and the tenor of case law cited by the parties. The applications submitted by the complainant were rejected by order dated 5.2.2003.

Feeling aggrieved, the complainant preferred Criminal Revision Petitions. The learned Sessions Judge came to the conclusion that the Revision Petitions are not maintainable against the order of dismissal of the complaint u/s 256 of the Cr.P.C. It is for such reason that the learned Sessions Judge was pleased to dismiss the Revision Petitions. It appears that the learned Sessions Judge relied on Om Gayatri and Co. and Others Vs. State of Maharashtra and Another, . That is the main reason as to why both the Revision Petitions were dismissed by the learned Sessions Judge.

Mr. Sharma, learned advocate for the applicant, would submit that the complainant could not be thrown out of the Court due to single default in appearance on the date of hearing. He would point out that the application to recall the order of dismissal was submitted on the same day during later part of the working hours. He would further submit that the order of dismissal could be revised, on showing appropriate cause, by the Court of Sessions. He contended that the learned Sessions Judge ought not to have dismissed the Revision Petitions only for the reason that they are not maintainable. According to Mr. Sharma, the Revision Petitions are maintainable though the Magistrate may not have inherent power to review his order of dismissal and to restore the case. He seeks to rely on "Mahendra Indermal Borana v. Anil Shankar Joshi and Anr." 2004 (1) Bom C R 805. As against this, Mrs. Patil, learned advocate appearing for the Respondent seeks to rely on Maj. Genl. A.S. Gauraya and Another Vs. S.N. Thakur and Another, . She also heavily relied on Om Gayatri and Co. and Others Vs. State of Maharashtra and Another, .

Upon consideration of the view taken in "Om Gayatri & Co. and Ors. v. State of Maharashtra and Anr." (supra), it appears, no doubt that the learned Single Judge (Kukday, J.) held that in case of absence of complainant, if complaint is dismissed u/s 256 of the Cr.P.C. and results in acquittal of accused then only appeal would lie against said order. The learned Single Judge further held that remedy of revision would not be available in such a case.

Though, prima facie there appears divergent opinion expressed by the two coordinate Benches yet, it cannot be overlooked that in "Om Gayatri and Co. and Ors. v. State of Maharashtra and Anr." (supra), the learned Single Judge has considered case of "Mahendra Indermal Borana v. Anil Shankar Joshi and Anr." 2004 [1] Bom C R 805. He has discussed as to how foundation of "Mahendra Indermal Borana" is somewhat shaky. He also duly considered the dictum in "Maj. Genl. A.S. Gauraya and Anr. v. S.N. Thakur and Anr." (supra) while analysing the legal position. There appears consistent view that only an appeal would be maintainable when private complaint is dismissed u/s 256 of the Cr.P.C. It is worthy to be noted that in "Shankarlal Bisanlal Kamad v. State of Maharashtra and Anr." 2001 ALL 700, learned Single Judge of this Court (Dabholkar, J.) held that where the complainant was found absent and had filed an application for exemption on ground of ill-health which was not supported by any medical evidence, the dismissal of the complaint was proper. So also, in Raja Upadhyay Vs. State of Maharashtra and Another, yet, another Single Bench (Patel, J.) held that where the complaint is dismissed due to absence of complainant then the discharge order rendered by the Magistrate must be construed as order of acquittal u/s 256(1) and not of discharge. The learned Single Judge held that in such case remedy is to file an appeal u/s 378(5) of the Cr.P.C. The learned Single Judge took survey of some other cases dealt with by other High Courts and reached finding that the only course open to the complainant in such a situation was to prefer an appeal in the High Court against the said order of the learned Magistrate by special leave of the Court u/s 378(5) of the Cr.P.C., 1973.

Similar view is expressed in Mr. Aseem Shabanali Merchant Legal Heir and Legatee of the deceased complainant, Ismat Shanabali Merchant Vs. Mr. Brij Mehra, Prop. Brij Enterprises and State of Maharashtra, . In the given case, it was held that when complaint was dismissed u/s 256(1) of the Cr.P.C., which was found to be proper course adopted by the Magistrate, there was no ground for admitting the appeal. In the said case, on three occasions the complainant and his advocate were found absent. In the present case also on three occasions the complainant was found absent. In "Dharamaji Gangaram Gholam and Ors. v. Vithoba Soma Khade and Anr." 1992 M.L.J. 118 yet, another Single Bench of this Court held that only appeal would lie against such order of dismissal. Thus, there is a consistent view taken by the Single Benches of this Court which holds the field.

The above consistent view cannot be unsettled without any substantial reason. The impugned order shows that the learned Sessions Judge has duly considered the legal position in relation to the powers of the Court regarding review of the order of dismissal. I am of the opinion that the learned Judicial Magistrate had no power to review his own order of dismissal. The complainant could have preferred an appeal against the order of acquittal and such appeal could be entertained only with the leave of this Court. It appears that the complainant was absent for three continuous dates and a specific order was passed on last date i.e. 10.2.2003 that case shall be posted on 24.2.2003. Consequently, the dismissal of the complaint on 24.2.2003 due to absence of the complainant cannot be faulted with. In this view of the matter, there is no merit in both the applications filed by the original complainant. These are the applications filed u/s 482 of the Cr.P.C. They are not maintainable because appellate remedy is available and the applicant/complainant must show sufficient ground to entertain the appeal against the order of acquittal. It is well settled that where there is a specific remedy provided by the law, Section 482 of the Cr.P.C. cannot be invoked. In HIM Advances and Savings Pvt. Ltd. Vs. Ravinder Kumar Gupta, , it is observed by Himachal Pradesh High Court that there being specific provision of appeal in Section 378 Cr.P.C. against acquittal in respect of order u/s 256 Cr.P.C., the provisions of Section 482 of the Cr.P.C. cannot be invoked. Considering the above discussion, I am inclined to dismiss both the applications since they are not maintainable in legal parlance and also because the same are without merits.

In the result, both the applications are dismissed.