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Manzoor Ahmad Mir v/s Nasir Ahmad Wasil

    CRM.(M) No. 271 of 2019 & Crl. M No. 930 of 2019
    Decided On, 06 October 2021
    At, High Court of Jammu and Kashmir
    By, THE HONOURABLE MR. JUSTICE SANJAY DHAR
    For the Appellant: N.H. Shah, Sr. Advocate, Naseem Shah, Advocate. For the Respondent: Irshad Ahmad, Advocate.


Judgment Text
1. Challenge has been thrown by the petitioner to the order dated 26.08.2018 passed by Additional Sessions Jude, Sopore, whereby revision petition filed by the respondent against the order of dismissal of his complaint passed by learned District Mobile Magistrate, Sopore, on 27.12.2017, has been allowed.

2. The facts emerging from the record are that respondent had filed a complaint for offences under Section 138 read with 142 of Negotiable Instruments Act ['the Act' for short'] against the petitioner before the Court of District Mobile Magistrate, Sopore (hereinafter referred to as the trial Magistrate). It seems that during the pendency of the said complaint, the complainant/respondent stopped appearing in the case and on 27.12.2017, the same was dismissed for non-prosecution.

3. The aforesaid order came to be challenged by the complainant/respondent before the Court of Additional Sessions Judge, Sopore (hereinafter referred to as the Revisional Court) by way of a revision petition. The learned Revisional Court, after making an elaborate discussion, vide its order dated 26.08.2019, allowed the revision petition and set aside the order of trial Magistrate and asked the parties to appear before the trial Magistrate with a further direction to the said Magistrate to revive the complaint in question to its original number and to proceed with the same in accordance with law.

4. The only contention that has been raised by the learned counsel for the petitioner is that once an order of dismissal of complaint is made by the Magistrate, the same amounts to acquittal. According to the learned senior counsel for the petitioner, an order of acquittal can be challenged only by way of an appeal after seeking leave to file the same and not by way of a revision petition.

5. The above contention of the petitioner has been disputed by learned counsel for the respondent.

6. I have heard learned counsel for the parties and perused the material on record.

7. As already noted, the complaint filed by the respondent against the petitioner for offence under Section 138 of the Act came to be dismissed by the learned trial Magistrate on account of default in appearance of the complainant and not on merits. It appears from the perusal of the impugned order passed by the Revisional Court that at the time when the complaint was dismissed for default, the complainant had already finished leading of evidence in support of his case. However, we are not concerned with the question as to whether or not the course adopted by the trial Magistrate in dismissing the complaint was proper. We are only concerned as to what is the appropriate remedy available to a complainant whose complaint has been dismissed in default.

8. The order of dismissal of complaint passed by the learned trial Magistrate simply records dismissal of the complaint but it does not record acquittal of the accused. Section 247 of J&K Code of Criminal Procedure, which is applicable to the instant case, provides the consequences of non-appearance of the complainant. It reads as under:

'247. Non-appearance of complainant. (1)If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day :

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case

(2) The provisions of sub-section (1), shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

9. From a bare perusal of the aforesaid provision, it is clear that if a Magistrate chooses to dismiss a complaint because of non-appearance of the complainant, he has to acquit the accused meaning thereby that acquittal of the accused is a necessary consequence of the dismissal of complaint in default of appearance of the complainant.

10. It has been vehemently contended by learned counsel for the respondent that in this case the Magistrate had only dismissed the complaint and not recorded acquittal of the accused, as such, it is not an order of acquittal of the accused. The reasoning given by the learned counsel for the respondents is not correct as the dismissal of a complaint necessarily leads to the acquittal of the accused.

11. The Supreme Court in the case of V. K. Bhat v. G. Ravi Kishore and another, (2016) 13 SCC 243, has clearly laid down that dismissal of complaint for non-appearance of complainant amounts to acquittal as contemplated under Section 256 of Central Cr. P. C, which corresponds to Section 247 of J&K Cr. P. C.

12. Once it has been held that the dismissal of complaint of the respondent in default has led to the acquittal of the accused/petitioner, the only remedy available to him was to file an appeal against the said order after seeking leave in terms of Section 417 of J&K Cr. P. C. A revision petition against an order of acquittal, which is appealable, is not maintainable in view of sub-section (5) of Section 439 of J&K Cr. P. C, which reads as under:

'439. High Court's powers of revision.

1. xxx xxx xxx xxx xxx

2. xxx xxx xxx xxx xxx

3. xxx xxx xxx xxx xxx

4. xxx xxx xxx xxx xxx

5. Where under this Code an appeal lies and no appeal is brought no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.'

13. The aforesaid view is supported by the judgment of the Bombay High Court in the case of Om Gayatri & Co. & Ors. V. State of Maharashtra & anr. 2006 Cri. L. J. 601. In the said case, the High Court of Bombay, after noticing the law on the subject, has in para 13 observed as under:

'13. It can be seen that earlier decisions; of this Court and other High Courts have consistently laid down law that only an appeal lies against order of dismissal of the complaint which amounts to acquittal of the accused and, in case of acquittal remedy of revision is not available to the aggrieved party. Not only that under Section 401 of Cr P.C. there is express bar for entertaining a revision at the instance of the party who could have appealed.

14. A Single Judge of this Court in the case of Sachin Sharma v. Pawan Gupta, 2019(1) SLJ (HC) 149, has dealt the issue at hand. The Court has, after noticing the provisions contained in sub-section (5) of Section 439 of J&K Cr. P. C, held that where ever appeal is provided under the Criminal Procedure Code against an order, no proceedings by way of revision can be entertained.

15. The Supreme Court in V. K. Bhat (supra) has, after noticing the provisions as contained in Section 401(4) of Central Code, which corresponds to sub-section (5) of Section 439 of J&K Cr. P. C, observed that where an appeal lies and no appeal is brought, no proceedings by way of revision can be entertained.

16. From the foregoing enunciation of law on the subject, it is clear that the order of dismissal of complaint passed by learned Magistrate amounted to acquittal of petitioner herein and the said orde

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r could have been challenged only by way of an appeal and not by way of a revision petition. Therefore, the Revisional Court has exercised a jurisdiction which is not vested in it and, in fact, is barred in terms of sub-section (5) of Section 439 of J&K Cr. P. C. The impugned order of the Revisional Court is, therefore, without jurisdiction and calls for interference. 17. For the foregoing discussion, the petition is allowed and the impugned order passed by the Revisional Court is set aside. However, it shall be open to the respondent/complainant to have recourse to the available remedial measures in accordance with provisions available in law and to proceed with the matter before the appropriate forum, if so advised. 18. Copies of this judgment be sent to both the Revisional Court and the trial court for information.
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