CRIMINAL WRIT PETITION 813 OF 2019

12th March 2020

Petitioner Counsel: Shri H.R. Gadhia
Respondent Counsel: Shri A. Shelat
Act Name: Negotiable Instruments Act, 1881 Code of Criminal Procedure, 1973

Section :
Section 138 Negotiable Instruments Act, 1881 Section 256 Code of Criminal Procedure, 1973 Section 397 Code of Criminal Procedure, 1973

Cases Cited :
Para 4: Gajanan Parshuram Chopade Vs. Mahatma Jyotirao Phule Gramin Bigarsheti Sahakari Patsanstha Maryadit, Barloni reported in 2009(1) Mh.L.J. 845
Para 6: V.K. Bhat Vs. G. Ravi Kishore, reported in (2016) 13 SCC 243

JUDGEMENT

1. RULE. Rule made returnable forthwith and heard finally by consent of both the learned Counsel appearing for the parties.

2. The respondent had filed a complaint for dishonor of cheque in terms of Section 138 of the Negotiable Instruments Act, 1881 against the petitioners on account of dishonor of cheque to the tune of Rs.33,50,000/-. The respondent/complainant remained absent in the proceedings therefore, the learned Magistrate has dismissed the complaint in terms of Section 256 of the Code of Criminal Procedure, 1973 and discharged the accused. Being aggrieved by the said dismissal of the complaint, the respondent complainant has preferred a revision petition in terms of Section 397 of the Code of Criminal Procedure, 1973 alongwith the delay condonation application. The said matter was heard on merit and ultimately, learned Sessions Judge was pleased to condone the delay caused in filing revision vide impugned order dated 18.07.2019.

3. The petitioner-accused being aggrieved by condonation of delay has preferred this writ petition on the premise that the remedy of revision is not available when the complaint is dismissed in terms of Section 256 of the Code of Criminal Procedure, 1973. Moreover, on facts, the petitioner has resisted to condone the delay occasioned for filing revision.

4. At this stage, both the learned Counsel agreed the legal position that when the private complaint is dismissed in terms of 256 of the Code of Criminal Procedure, 1973 it has effect of acquittal meaning thereby the remedy of appeal in terms of Section 378 is available. In this regard, reliance is placed on the decision of the Division Bench of this Court in Case of Gajanan Parshuram Chopade vs. Mahatma Jyotirao Phule Gramin Bigarsheti Sahakari Patsanstha Maryadit, Barloni reported in 2009(1) Mh.L.J. 845 wherein this position is clarified.

5. Learned Counsel for the petitioner submitted that the learned Magistrate erred in discharging the accused instead of acquitting him which leads to prefer a revision. This submission carry substance since the effect of dismissal of complaint is of acquittal, therefore, the order of discharge is improper. Of-course, the legal effect of dismissal of complaint is always of acquittal though the Magistrate has erroneously discharged the accused.

6. Learned counsel for the respondent submits that since respondent was mis-directed by the order of discharge, he be permitted to prefer an appeal which is a correct remedy. For this purpose he relied on the decision of the Hon’ble Supreme Court in case of V.K. Bhat v. G. Ravi Kishore reported in (2016) 13 SCC 243. In said case similar situation arose as the private complaint was dismissed against which revision was filed. Ultimately, it was expressed that revision was not maintainable and appeal is the remedy. Considering the facts of the said case which was also for dishonor of cheque, the Hon’ble Supreme Court permitted the original-complainant to approach to the appropriate forum within a period of two weeks in accordance with law. Considering the dictum laid down by the Hon’ble Supreme Court and as the error was committed by the Magistrate, this writ petition can be disposed in similar terms. Since, it is undisputed that revision petition is not maintainable against the order of dismissal of complaint under Section 256 of the Code of Criminal Procedure 1973, the order of condonation of delay in preferring revision petition stands quashed and set aside. In view of the ratio laid down in case of V.K. Bhat (supra) and considering the high amount involved in the proceeding, respondent is at liberty to take necessary steps as may be adviced in accordance with the provisions in law and to proceed with the matter before the appropriate forum within a period of two weeks from the date of receipt of the copy of this order. If the respondent approaches to the appropriate forum, the aspect of delay will be independently considered on its own merits.

7. The Criminal Writ Petition stands disposed in above terms. Rule is made absolute. No costs.