Jammu & Kashmir High Court
Sachin Sharma vs Pawan Gupta on 1 February, 2019
Equivalent citations: AIRONLINE 2019 J AND K 32
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
CRMC No. 96/2009
Date of order: 01.02.2019
Sachin Sharma Vs. Pawan Gupta
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge.
Appearing counsel:
For Petitioner (s) : Mr. Sachin Sharma, Advocate
For Respondent (s) : Mr. A. K. Basotra, Advocate
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Through the instant petition filed under Section 561-A Cr.P.C., petitioner
seeks quashing of order dated 30.05.2009, passed by the learned Principal
Sessions Judge, Jammu in case file No.36/Revision titled, Pawan Gupta vs.
Sachin Sharma by virtue of which the revision petition filed by the
respondent herein has been allowed and the order impugned in the said
revision petition dated 27.11.2008 passed by the learned 1st Additional
Munsiff, Forest Magistrate, JMIC Jammu has been set aside and also for
quashing of proceedings directed to be initiated against the petitioner by
virtue of order impugned dated 30.05.2009.
2. In the petition, it has been stated that the respondent herein preferred a
Revision petition against the said order dated 27.11.2008 before the Ld.
Principal Sessions Judge, Jammu by way of File No.36/Revision titled,
Pawan Gupta V/s Sachin Sharma, which was disposed of by the Court vide
order dated 30.05.2009, by virtue of which the order impugned in the said
revision petition dated 27.11.2008 was set aside with the further direction to
the learned trial Court to proceed with the said complaint and issue fresh
notice to the accused therein. By way of present petition, the petitioner
herein has sought quashment of order dated 30.05.2009 passed by ld.
Principal Sessions Judge, Jammu on the following grounds:-
CRMC No. 96/2009 Page 1 of 6
(a) The order impugned is against the facts and law laid down by the Hon'ble
Supreme Court from time to time and it is not sustainable in the eyes of law.
(b) The Ld. JMIC Jammu rightly dismissed the complaint for non- prosecution
ad acquitted the petitioner for non-appearance of the complainant. That the
complainant did not appeared before the Ld. Trial Court for five consecutive
dates of hearing. That under the provisions of Section 247 J&K Cr.P.C, and in
a summons case, the court is within its power and competence to acquit the
accused for non-appearance of complainant.
(c ) That vide order dated 27.11.2008, the Learned Trial Court has acquitted the
petitioner for non-appearance of the complainant therein. The Ld. Principal
Sessions Judge, Jammu vide order impugned has exceeded revisional
jurisdiction under the provisions of Section 435 Cr.P.C The Ld. Principal
Sessions Judge, Jammu has not power to interfere with the order of acquittal
under those provisions. That in exercise of the power given under the provision
of Section 247 Cr.P.C, and upon dismissal of the complaint, the petitioner
herein already stand acquitted and not discharged. The entertaining a revision
petition against an order of acquittal, which is appealable and restoring a
criminal complaint exceeding jurisdiction is patently illegal, erroneous and
without justification, hence the order impugned is not sustainable in the eyes of
law.
(d) That vide order impugned in the petition dated 30.5.2009, the Ld. Principal
Sessions Judge has restored the complaint under the Revisional jurisdiction.
That the Ld. Principal Sessions Judge has no jurisdiction to entertain a
revision petition against an order of acquittal. That it is herein most humbly
submitted that under the provisions of J&K Cr.P.C i.e. U/S 417 Cr.P.C, an
appeal may be preferred to the High Court from an original or appellate order
of acquittal passed by any court and in case such an order of acquittal is passed
in any case instituted upon complaint, then the complainant may be granted
special leave to appeal from the order of acquittal by the High Court and
thereafter the complainant may present such an appeal to the High Court. It is
most humbly submitted that by virtue of order impugned, the Ld. Principal
Sessions Judge has exceeded its jurisdiction and has interfered with the order
of acquittal, which is only an appealable order, without having jurisdiction to
interfere with the same. That it also most humbly submitted that the order
impugned virtually amounts to retrial of the petitioner even after earning an
order of acquittal from the Ld, JMIC Jammu hence the said order is liable to
be quashed and set aside and the proceedings directed to be again initiated
against the petitioner may kindly be set aside in limine.
(e) That the learned Sessions Judge has interfered with the order dated
26/11/2008 passed by the Ld. JMIC Jammu on the premise that when the Court
of 4th Additional Munsiff, JMIC was abolished and the above referred case was
transferred to the court of 1stAdditional Munsiff, it was the duty of the Trial
Court to serve notice upon the complainant for such transfer and should not
have proceeded and dismissed the case. It is most humbly submitted that the
Ld. Sessions Judge has not taken into consideration the order dated 8/7/2008
passed by the Ld. 4th Additional Munsiff, Jammu which is reproduced below for
the reference of the Hon'ble Court.
3. I have considered the rival contention of the parties and law on the subjects.
Counsel for petitioner has relied upon the judgment reported in 2002
CRMC No. 96/2009 Page 2 of 6
CRI.L.J. 4741, case titled Him Advances and Savings Pvt. Ltd. vs.
Ravinder Kumar Gupta; 2003 Cr.L.J 2750 case tiled H.P Financial
Corporation v Continental Spinners Ltd.; 2003 Cr.l.J 149 case titled
Krishan Kumar v. Mohamand Jaros; and 2006 Cr.L.J 601 case titled
Om Gayatri Vs. State. Whereas counsel for respondent has relied upon
unreported judgment of this court passed in CR. Rev. No.56/99 dated
27.3.2000, in case titled M/s Sajawat Refrigeration v. Mohan Singh
Sambyal.
4. From the perusal of the documents on record, it appears that a Criminal
complaint under Section 138 Negotiable Instrument Act for dishonor of
cheque amounting to Rs.50,000/- was filed before the 4th Additional
Munsiff, Jammu. The said court took cognizance and petitioner/accused
herein appeared. It further appears that on 08.07.2008 the complaint was
transferred from the Court of learned 4th Additional Munsiff Jammu to 1st
Additional Munsiff (Forest Magistrate), Jammu on account of abolishment
of court of 4th Additional Munsiff JMIC, Jammu. The said Court on
27.11.2008 dismissed the complaint due to non-appearance of complainant.
Aggrieved by the said order, the complainant filed a revision petition before
the learned Sessions Judge, Jammu on 17.01.2009, who allowed the revision
petition vide order dated 30.05.2009. Against this order passed in said
revision present, petition under 561-ACr.P.C. has been filed. The only
argument of the counsel for the petitioner is that revision before the Sessions
Judge was not maintainable as petitioner was acquitted on account of
dismissal of complaint in default so complainant was required to file
acquittal appeal in terms of Section 417 Sub-Clause (2) Cr.P.C. before this
Court.
5. So only question to be decided is as to whether, revision against the order of
dismissal of complaint under section 138 of N.I Act in default, is
maintainable or not.
CRMC No. 96/2009 Page 3 of 6
6. Complaint under section 138 of N.I Act is summon trial; chapter XX of
Cr.P.C deals with trial of summon case; its section 247 Cr.P.C. reads as
under:-
"Section 247- Non- appearance of complainant.
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 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."
7. From bare perusal of this section, it is evident that where the complainant is
absent on the date of hearing the Magistrate may either (i) acquit the
accused, or (ii) adjourn the case for some future date; or (iii) dispense with
the attendance of the complainant and proceed with the case. The Magistrate
has the discretion to choose any of these three alternatives applying his
judicial mind. Its proviso also provide that magistrate may proceed with
the case further keeping aside the absence of the accused due to his non-
appearance, where he finds it necessary to do so in the interest of justice.
Section 256 of Central Cr.P.C is pari materia to section 247 of State code.
8. Section 417(2) Cr.P.C. reads as under:-
"417. Appeal in case of acquittal.- (1) Subject to the provisions of sub-
section (4), the Government may, in any case, direct the Public Prosecutor
to present an appeal to,-
.............
(2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court on an application made to it by the complainant in this behalf, grant special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court."
CRMC No. 96/2009 Page 4 of 6From perusal of this provision, it is evident that in case of order of acquittal passed in a complaint case, High Court may grant special leave to appeal from the order of acquittal on the application made by the complainant. After granting leave to file appeal, complainant has a right to file acquittal appeal before High Court.
9. Section 438(2) & Section 439 (2) to (5) Cr.P.C. read as under:-
"438. Sessions Judge's powers of revision.-(1)...............
(2) Where any proceeding by way of revision is commended before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 439 shall, so far as may be, apply to such proceedings and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge."
"439.High Court's powers of revision.-(1) ..........
(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under Section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Judicial Magistrate of the first class.
(4) Nothing in this section shall be deemed to authorise the High Court to convert a finding of acquittal into one of conviction.
(5) Where under this 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 could have appealed."
On conjoint reading of these sections, it is evident that, whereunder this code an appeal lies and no appeal is brought by the aggrieved party, no proceeding by way of revision shall be entertained. The law cited by counsel for respondent is not applicable, because there was no occasion to decide the point raised in this petition.
CRMC No. 96/2009 Page 5 of 610.In all the case cited by counsel for petitioner i.e 2002 CRI.L.J. 4741, Him Advances and Savings Pvt. Ltd. vs. Ravinder Kumar Gupta; 2003 Cr.L.J 2750 case tiled H.P Financial Corporation v Continental Spinners Ltd.; 2003 Cr.l.J 149 case titled Krishan Kumar v. Mohamand Jaros; and 2006 and Cr.L.J 601 case titled Om Gayatri Vs. State, it has been held that once a complaint u/s 138 of N.I.Act is dismissed due to non appearance of complainant in terms of section 265 (Central code), accused is deemed to be acquitted; then only remedy available to complainant is to file acquittal appeal and revision would not be maintainable.
11.In the circumstances, the Principal Sessions Judge, Jammu ought to have summarily rejected the Revision Application directing the complainant to prefer an appeal against the order passed by the Magistrate under section 247 Cr.P.C. of the Criminal Procedure Code; but the learned Pr. Sessions Judge committed an error in entertaining the revision on merits and interfering with the order passed by the learned Magistrate. Hence, this petition is allowed. The order of Pr. Sessions Judge Jammu is set aside. Respondent may file acquittal appeal, if so advised.
Jammu (Sanjay Kumar Gupta)
01.02.2019 Judge
Meenakshi
CRMC No. 96/2009 Page 6 of 6