the remedy of complainant against an order of acquittal is by way of appeal and filing of a revision petition against such order is barred.

Himachal Pradesh High Court
Him Advances And Savings Pvt. Ltd. vs Ravinder Kumar Gupta on 2 April, 2002
Equivalent citations: II (2003) BC 546, 2002 CriLJ 4741
Author: M Verma
Bench: M Verma


M.R. Verma, J.

1. This criminal revision petition under Section 397 read with Sections 401 and 482 of the Code of Criminal Procedure (hereafter referred to as ‘the Code’) has been preferred by the petitioner-complainant (hereafter referred to as ‘the petitioner’) against the order dated 18.6.2001, passed by the learned Additional Chief Judicial Magistrate, Shimla, in Criminal Complaint No. 167-3 of 1999, whereby the respondent accused (hereafter referred to as ‘the respondent’) has been acquitted on the ground of non-appearance of the complainant under Section 256 of the Code.

2. The undisputed facts are that the petitioner filed a complaint against the respondent in the Court of the learned Additional Chief Judicial Magistrate, Shimla, under Section 138 of the Negotiable Instruments Act, 1881. The complaint was listed for hearing on 18.6.2001 for evidence of the complainant. The complainant, however, applied for exemption, but after hearing the parties, the Court declined the exemption, and rejected the application. Thus, the Court observed that the complainant is not present nor he has taken steps for summoning the witnesses, though three opportunities had already been granted to him, but he has failed to take steps to summon the witnesses and acquitted the respondent under Section 256 of the Code.

3. At the time of admission, the question regarding maintainability of the present petition arose, and the learned Counsel for the petitioner was heard on such question. It was contended that since the complainant had not led any evidence, therefore, the order of acquittal is bad in law and is revisable or in any case, this Court can interfere with this order under its inherent powers.

4. Section 256 of the Code clearly and unambiguously contemplates that on failure of the complainant to appear on the day appointed for the appearance of the accused or any day subsequent thereto, to which the hearing may be adjourned the Magistrate shall, notwithstanding anything contained in the Code, acquit the accused, unless for some reason he thinks the hearing of the case to some other date in the edge in hand, the impugned order acquitting the respondent has been passed by the learned trial Magistrate because of the absence of the complainant, who was to lead evidence on the date fixed for hearing. Therefore, by virtue of the provisions of Section 256 of the Code, for all intents and purposes the impugned order is an order of acquittal.

5. Sub-section (4) of Section 378 of the Code provides that against an order of acquittal passed in any case instituted upon complaint, the complainant, after grant of special leave to appeal from the order of acquittal may present an appeal to the High Court. Thus, a complainant has a right of appeal against an order of acquittal.

6. Sub-section (1) of Section 410 of the Code provides that where under the 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 would have appealed.

7. In view of the aforesaid provisions, the remedy of complainant against an order of acquittal is by way of appeal and filing of a revision petition against such order is barred. Therefore, a revision does not lie against the impugned order.

8. Since the remedy of the petitioner was by way of appeal against the impugned order of acquittal, therefore, there being specific grievance, the petitioner cannot be permitted to invoke the inherent jurisdiction of this Court under Section 482 of the Code.

9. In view of the above discussion, the present petition is not maintainable and is accordingly dismissed, without prejudice to any other legal remedy available to the petitioner.F


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