ORDER : This revision petition is preferred by accused Nos.2 and 3 challenging the judgment and order of conviction dated 20.4.2006 passed by the XX ACMM and XXII ASCJ, Bengaluru city in C.C. No. 27067 of 2001 and confirmed by the judgment and order dated 1.10.2009 passed by the Fast Track (Sessions Judge) V, Bengaluru city in Crl. A. No. 1019 of 2006. 2. By its judgment and order, the trial Court convicted accused Nos.1 to 4 for the offence punishable under Section 138 of the Negotiable Instruments Act and held that accused Nos.2 to 4 are jointly and severally sentenced to pay a fine of Rs.22,00,000/-, in default of payment of fine amount, each of them to undergo simple imprisonment for a period of two years. Being aggrieved by the judgment and order of conviction, accused Nos.2 and 3 have preferred appeal before the first appellate Court. Even the first appellate Court on perusing the materials in the said appeal, dismissed the appeal confirming the judgment and order of conviction passed by the trial Court. Hence, accused Nos.2 and 3 are before this Court in this revision petition. 3. Brief facts of the case of the complainant are that complainant is the bank and accused are the customers of the complainant-bank. Accused Nos.2 to 4 are the Directors of accused No.1Infospace Dot Com Pvt. Ltd., Accused No.1 has availed the overdraft facility of Rs.16,00,000/- on 27.6.2000 and even after several requests and reminders, it did not pay the loan amount, on the other hand, issued cheque bearing No.396719 for Rs.18,50,000/- dated 18.6.2001 drawn on Punjab and Sindh Bank, J.C. Nagar, Bengaluru. The complainant-Bank has presented the said cheque through its banker Vysya Bank Ltd., Kasturba Branch, Bengaluru for encashment, which was returned on the ground of insufficient funds with the endorsement dated 20.6.2001. Complainant-Bank intimated the same to the accused by way of demand notice to pay the cheque amount. In spite of service of notice, the accused have not paid the cheque amount, on the other hand, accused Nos.2 to 4 have given untenable reply through their advocate. Thereafter, on 15.12.2000, accused Nos.2 to 4 have given an undertaking to the bank stating that they will clear all the dues of the accused No.1 company by 30.4.2001. Accused No.2 gave one more undertaking on 6.6.2000 stating that he will clear all the dues payable to the bank. Thereafter, on 15.12.2000, accused Nos.2 to 4 have given an undertaking to the bank stating that they will clear all the dues of the accused No.1 company by 30.4.2001. Accused No.2 gave one more undertaking on 6.6.2000 stating that he will clear all the dues payable to the bank. Since accused have not paid the amount, complainant issued legal notice and filed the private complaint before the trial Court. In support of the case of the complainant, one Mr. Mohammed Samiulla was examined as P.W.1 and documents Exs.P1 to P12 were got marked. On the side of the defence one witness was examined as D.W.1 and two documents were produced as per Exs.D1 and D2. After considering the materials placed on record, the trial Court held the accused persons guilty and convicted them for the offence under Section 138 of Negotiable Instruments Act. Being aggrieved by the said order when appeal was preferred, it came to be dismissed and the judgment and order of conviction passed by the trial Court was confirmed by the first appellate Court. 4. Heard the arguments of the learned counsel appearing for the respondent No.1complainant. The petitioners and their counsel are not present before the Court. 5. Learned counsel for the respondent No.1 complainant submitted that though as contended by the petitioners-accused Nos.2 and 3 the complaint as against them was dismissed by the learned Magistrate and though the dismissal order was not recalled by the learned Magistrate at any time, but in the subsequent proceedings before the trial Court petitioners herein have participated and have been examined under Section 313 of Cr.P.C. Hence, in view of this subsequent development in the case and the participation of the petitioners in the said proceedings, the judgment and order of conviction passed by the trial Court is binding on them. Further, even the appeal preferred before the first appellate Court in Crl.A.No.1019/2006 came to be dismissed. The conduct of the petitioners in approaching the first appellate Court challenging the legality and correctness of the judgment and order of the trial Court shows that they have participated in the proceedings. Further, even the appeal preferred before the first appellate Court in Crl.A.No.1019/2006 came to be dismissed. The conduct of the petitioners in approaching the first appellate Court challenging the legality and correctness of the judgment and order of the trial Court shows that they have participated in the proceedings. Therefore, even if the order of dismissal is not recalled by the trial Court, the judgment and order of conviction passed by the trial Court and confirmed by the first appellate Court are binding on the petitioners and now they cannot contend before this Court that proceedings are vitiated. Accordingly, he has submitted that there is no merit in the revision petition and the same is to be dismissed. 6. I have perused the grounds urged in the revision petition, judgment and order of conviction passed by the trial Court and confirmed by the first appellate Court. 7. Even according to the learned counsel appearing for the respondent No.1complainant, it is an admitted fact that the complaint as against revision petitioners was dismissed by the trial Court. Further, the order sheet dated 25.2.2005 secured from the trial Court also shows that complaint as against accused Nos.2 and 3 came to be dismissed and the matter was posted for recording statement of accused No.4 under Section 313 of Cr.P.C. The said dismissal order was not recalled in the subsequent stage. Further, the entries in the order sheet shows that the trial Court issued NBW as against the petitioners herein. When the NBW was executed, the petitioners filed application before the trial Court under Section 70(ii) of the Cr.P.C. and the trial Court has allowed the application and enlarged the petitioners herein on bail. Subsequently, petitioners herein were also examined by the trial Court under Section 313 of Cr.P.C. and their statement was recorded. Ultimately, the trial Court held accused Nos.1 to 4 guilty of the offence punishable under Section 138 of the N.I. Act. 8. As contended by the revision petitioners in the grounds of the revision petition, at one stage when the complaint came to be dismissed and it was not recalled by the learned Magistrate, the learned Magistrate has no jurisdiction to pass the order of conviction since the subsequent proceedings are vitiated and they have no legal sanctity at all. 8. As contended by the revision petitioners in the grounds of the revision petition, at one stage when the complaint came to be dismissed and it was not recalled by the learned Magistrate, the learned Magistrate has no jurisdiction to pass the order of conviction since the subsequent proceedings are vitiated and they have no legal sanctity at all. In this connection, the revision petitioners have also relied upon the decision rendered in the case of Major General A.S. Gauraya and another Vs. S.N. Thakur and another reported in (1986) 2 SCC 709 wherein the Hon’ble Apex Court has held that “after having passed an order of dismissal, the Sub-divisional Magistrate becomes functus officio and has no power to review or recall the order on any ground whatsoever. In these circumstances, therefore, the order even if there be one, recalling order dismissing the complaint, was entirely without jurisdiction. That being the position, all subsequent proceedings following upon recalling the said order, would fall to the ground including the order summoning the accused which must also be treated to be a nullity and destitute of any legal effect.” 9. In view of the principle laid down by the Hon’ble Apex Court and admittedly when even according to the respondent No.1complainant, the order of dismissal of the complaint was not recalled on a subsequent date, all the subsequent proceedings as against the revision petitioners are vitiated since there is no legal sanctity for the subsequent orders after dismissal of the complaint. This legal aspect is not looked into by the trial Court as well as the first appellate Court. Therefore, the judgment and order of conviction passed by the trial Court and confirmed by the first appellate Court so far as they relate to revision petitioners-accused Nos.2 and 3 are illegal and they are not sustainable in law. 10. Accordingly, revision petition is allowed. The judgment and order of conviction passed by the trial Court and confirmed by the first appellate Court, in so far as they relate to revision petitioners herein, are hereby set aside. It is for the respondent No.1 complainant, if so desired, to take appropriate steps, as permissible under the law.