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2009 DIGILAW 972 (MP)

Dhiraj Singh v. Sardar Singh

2009-08-12

N.K.MODY

body2009
ORDER N.K. Mody, J. 1. Being aggrieved by the order dated 3.12.2008 passed by Sessions Judge, Iridore 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, 500/- which was dishonoured. It was alleged that petitioner has committed an offence which is punishable under Section 138 of the Act. After taking cognizance of the offence petitioner was noticed. The proceedings initiated against the petitioner were challenged by the petitioner before this Court in M.Cr.C. No. 557/06 wherein an interim order was passed by this Court wherein the learned Trial Court was restrained to pronounce the judgment. Thereafter the matter was finally disposed of by this Court vide order dated 28.4.2007. Before the learned Trial Court the date was fixed as 11.5.2007 and on that date Counsel for the petitioner produced the copy of the order passed by this Court on 28.4.2007 and since the respondent was absent, therefore, the complaint filed by the respondent was dismissed in default of appearance. After lapse of approximately more than one year on 17.6.2008 an application was filed by the respondent under Section 256(1), Cr.P.C. wherein it was prayed that the order dated 11.5.2007 whereby the complaint filed by the respondent has been dismissed be recalled and the criminal complaint be restored. The application was contested by the petitioner. After hearing the parties, learned Trial Court dismissed the application filed by the respondent vide order dated 17.6.2008. Against this order a revision petition was filed by the respondent before the learned Sessions Court which was allowed by the impugned order, against which present petition has been filed. 3. The application was contested by the petitioner. After hearing the parties, learned Trial Court dismissed the application filed by the respondent vide order dated 17.6.2008. Against this order a revision petition was filed by the respondent before the learned Sessions Court which was allowed by the impugned order, against which present petition has been filed. 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.L.J. 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. M/s. Continental Spinners Ltd. I (2004) BC 280 : 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. 4. On the strength of aforesaid law, learned Counsel for the petitioner submits that petition filed by the petitioner be allowed and the impugned order passed by the learned revisional Court be set aside. 5. Learned Counsel for the respondent submits that the complaint was filed by the respondent under Section 138 of the Act but because of stay granted by this Court in M.Cr.C.. 557/06, there was no progress in the case. It is submitted that in the circumstances respondent could not appear before the learned Trial Court. 5. Learned Counsel for the respondent submits that the complaint was filed by the respondent under Section 138 of the Act but because of stay granted by this Court in M.Cr.C.. 557/06, there was no progress in the case. It is submitted that in the circumstances respondent could not appear before the learned Trial Court. It is submitted that the moment it came to the notice of the respondent that the complaint filed by the respondent has been dismissed by the learned Trial Court on account of default in appearance, thereafter the application was filed by the respondent before the learned Trial Court, which was wrongly dismissed by the learned Court below. It is submitted that against the order dated 17.6.2008 respondent has rightly filed the revision petition before the learned Sessions Court which was rightly allowed. Learned Counsel further submits that the case law submitted by the petitioner is not applicable in the present case. It is submitted that the petition filed by the petitioner be dismissed. 6. From perusal of the record it is evident that the respondent has not preferred any revision against the order dated 11.5.2007, whereby the complaint filed by the respondent was dismissed on account of default in appearance of the respondent. It is true that the net result of the dismissal of the complaint on account of non-appearance of the respondent was amounting to acquittal of the petitioner under Section 256, Cr.P.C. However, since revision petition was filed by the respondent against the order dated 17.6.2008 whereby the application filed by the respondent for restoration was dismissed, therefore, it cannot be said that the revisional Court was having no jurisdiction to entertain the revision for testing the validity of the order dated 17.6.2008. In view of this, objection raised by the petitioner that the revision petition itself was not maintainable as the learned Sessions Court was having no jurisdiction, cannot be entertained. 7. So far as validity of the order passed by the learned Sessions Court is concerned, the learned Sessions Court has taken into consideration the law laid down in the matter of Mohd. 7. So far as validity of the order passed by the learned Sessions Court is concerned, the learned Sessions Court has taken into consideration the law laid down in the matter of Mohd. Azeem v. A. Venkatesh (2002) 7 SCC 726 , wherein in a criminal case filed under Section 138 of the Act the complaint was dismissed on account of default in appearance, Hon'ble Apex Court held that the cause shown by the complainant that he wrongly noted the date, was a valid ground for restoration of the complaint. It was also observed by the Hon'ble Apex Court that default in appearance of one date and dismissal of complaint on that ground is not proper. 8. In the facts and circumstances of the case, this Court is of the view that no illegality has been committed by the learned revisional Court in passing the impugned order, which can be corrected by this Court while exercising revisional jurisdiction. Hence petition has no merits and is hereby dismissed.