Nathey Ram vs State Of Uttarakhand & Another

Pankaj Purohit, J

Heard learned Counsel for the parties.

By means of the present C482 application, applicant has put to challenge the order dated 17.08.2022, passed by 5th Additional Sessions Judge, Haridwar in Criminal Revision No.32 of 2022, Surendra Prakash Malik vs. State of Uttarakhand & another, whereby the revision-petition was allowed and the order dated 20.03.2021, passed by learned Additional Chief Judicial Magistrate, Haridwar in Criminal Complaint Case No.1234 of 2015, Surendra Prakash Malik vs. Nathey Ram, under Section 138 of Negotiable Instruments Act, 1881 was set-aside and the matter was remanded back to the learned trial court for re-consideration of the matter.

It is contended by learned counsel for the applicant that since the order passed by learned trial court was under Section 256 Cr.P.C. and the complaint filed by the respondent-complainant was dismissed, therefore, it amounts to acquittal. He further contends that against the acquittal, the remedy available to the respondent-complainant was only to file special leave to appeal under Section 378(4) Cr.P.C. along with appeal.

It is also contended by learned counsel for the applicant that learned revisional court has got no jurisdiction to interfere in the order of acquittal recorded in favour of the applicant.

Per contra, learned counsel for respondent no.2-complainant on the strength of counter affidavit, submits that on 19.03.2021, the trial court has passed the order that if the complainant remained absent on the next date, the complaint will be dismissed under Section 256 Cr.P.C. and without fixing any date, the learned trial court vide order dated 20.03.2021 dismissed the complaint filed by the respondent-complainant under Section 256 Cr.P.C.

For the purpose of appreciating the arguments advanced by learned counsel for the applicant, Section 256 Cr.P.C. is quoted hereinbelow:-

“256. Non-appearance or death of complainant.-(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2)……………………………………………………………………”

Be that as it may, since the complaint was dismissed under Section 256 Cr.P.C., therefore, without any doubt, this Court is of the view that it is an order of acquittal recorded in favour of the applicant. I have gone through the order of revisional court, I do not agree with the findings recorded by learned revisional court in respect of the order impugned. Thus, the impugned order suffers patent illegality and interference is warranted.

Accordingly, the C482 application is allowed. The order dated 17.08.2022, passed by 5th Additional Sessions Judge, Haridwar in Criminal Revision No.32 of 2022, Surendra Prakash Malik vs. State of Uttarakhand & another is hereby set-aside.

Pending application, if any, stands disposed off accordingly.