Himachal Pradesh High Court
H.P. Financial Corporation vs Continental Spinners Ltd. And Ors. on 12 March, 2003
Equivalent citations: I(2004)BC280, 2003CRILJ2750
Author: M.R. Verma
Bench: M.R. Verma
ORDER M.R. Verma, J.
1. This revision petition under Section 397 read with Sections 401 and 482 of the Code of Criminal Procedure, 1973 (hereafter referred to as 'the Code') is directed against the order dated 13.11.2001 passed by the learned Judicial Magistrate (II), Shimla, in Complaint Case No. 77/8 of 1900, dismissing the complaint for default of appearance by the complainant.
2. The brief facts leading to the presentation of this petition are that the petitioner filed a complaint against respondents 1 and 2 under Section 138 of the Negotiable Instruments Act. After recording the preliminary evidence, the learned trial Magistrate vide order dated 23.8.1999 found that there were reasons to proceed against respondents 1 and 2, therefore, ordered issue of summons to them. Thereafter, summons were issued but the service could not be effected. The matter remained pending for service of the said respondents because sometimes they could not be served and at times the complainant failed to take steps for getting them served. Lastly, the case was listed on 13.11.2001, for which date, bailable warrants were issued to secure the presence of respondents 1 and 2. The complainant, however, failed to appear on the said date, therefore, the complaint was dismissed by the impugned order. Being aggrieved, the petitioner has preferred the present petition.
3. A preliminary question whether the present petition is maintainable arises for consideration. Therefore, the learned Counsel for the petitioner was heard on the question of maintainability of this petition.
4. There is no dispute that the case against the respondent Nos. 1 and 2 was a summons case. Section 256 of the Code provides for the consequences of non-appearance of a complainant in a summons case after the summons has been issued on the complaint and reads as follows:
"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) The provisions of Sub-section (1) shall so far as may be apply also to cases where the non-appearance of the complainant to is due to his death."
5. It is clear on a bare reading of the aforesaid provisions that in a case where the summons has been issued on the complaint in a summons case and the complainant fails to appear when the case is called on the day fixed for appearance of the accused, or on any adjourned date of hearing, the trial Magistrate may acquit the accused or adjourn the case or proceed to hear the case, if complainant is represented by a pleader.
6. In the case in hand, since the complainant or his Advocate was not present, therefore, the complaint was dismissed by the impugned order. Evidently, the learned trial Magistrate neither chose to adjourn the case for future date nor to proceed with the case. Therefore, for all intents and purposes, the impugned order dismissing the complaint has the effect of acquittal.
7. Since the case was instituted on a complaint and the dismissal of the complaint has the effect of acquittal, therefore, in view of the provisions of Sub-section (4) of Section 378 of the Code, the remedy of the complainant was to make an application seeking special leave to appeal against the impugned order and present an appeal, with course the complaint had not adopted.
8. Sub-section (4) of Section 401 of the Code provides that where under the Code, an appeal lies and no appeal is preferred, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. Therefore, the petitioner having failed to appeal against the impugned order, the revision petition is not maintainable.
9. Provisions of Section 482 of the Code can also be invoked where the remedy of appeal was available to the petitioner.
10. In view of the position in law, the present petition is not maintainable and is accordingly dismissed.