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2021 (11) TMI 446 - HC - Indian LawsDishonor of Cheque - 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 - HELD THAT - 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. 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. The order of dismissal of complaint passed by learned Magistrate amounted to acquittal of petitioner herein and the said order 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 passed by the Revisional Court is set aside - Petition allowed.
Issues Involved:
Challenge to order allowing revision petition against dismissal of complaint for non-prosecution. Analysis: 1. The petitioner challenged the order allowing the revision petition against the dismissal of the complaint by the trial Magistrate. The respondent had filed a complaint under the Negotiable Instruments Act, which was dismissed for non-prosecution by the trial Magistrate. 2. The Revisional Court set aside the trial Magistrate's order and directed the revival of the complaint. The petitioner contended that dismissal of a complaint amounts to acquittal and can only be challenged by way of appeal, not by revision petition. 3. The dismissal of the complaint by the trial Magistrate did not amount to acquittal as it was due to non-appearance of the complainant. The relevant provision of J&K Code of Criminal Procedure mandates that in case of non-appearance, the accused is to be acquitted. 4. The Supreme Court precedent in V.K. Bhat v. G. Ravi Kishore established that dismissal of a complaint for non-appearance of the complainant leads to acquittal. The only remedy available to challenge such an order is by filing an appeal, not a revision petition. 5. The High Court emphasized that where an appeal lies against an order, no revision can be entertained. The judgment cited the provision of J&K Cr.P.C. and the corresponding Central Cr.P.C. to support the view that an order of dismissal leading to acquittal can only be challenged through an appeal. 6. The High Court held that the Revisional Court's order allowing the revision petition was without jurisdiction and set it aside. The respondent was granted the opportunity to pursue available legal remedies in accordance with the law. 7. The judgment highlighted the legal position that dismissal of a complaint for non-appearance of the complainant results in acquittal of the accused, which can only be challenged through an appeal. The court directed the dissemination of the judgment to the relevant lower courts for information. This detailed analysis of the judgment provides a comprehensive understanding of the legal issues involved and the reasoning behind the High Court's decision.
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