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4. The petitioner has stated that the criminal revision petition was patently time barred and no application to condone the delay was filed. It is specifically contended that the revision petition filed by the respondent before the District and Sessions Judge is not maintainable under section 397 of Cr.P.C. and the Sessions Court should not have exercised the jurisdiction under section 397 of Cr.P.C. Therefore the impugned order is liable to be set aside.

9. In support of his submission, the learned counsel has relied on the judgment in the case of Associated Cement Co. Ltd., vs. Keshavanand, (1998) 1 SCC 687; the judgments of this Court in Crl.P.No.102192/2018, decided on 6.2.2019 and Crl.P.No.3918/2015 decided on 26.8.2015.

10. The undisputed facts are that the respondent filed a complaint against the petitioner herein before the Prl. Civil Judge and JMFC, Hospete, for the offence punishable under section 138 of the Negotiable Instruments Act, which was initially registered as PCR No.37/2013 and after taking cognizance of the alleged offence, C.C.No.1458/2013 was registered against the petitioner. It is also not disputed that after recording plea of the accused, the matter was posted for evidence of the complainant. The trial Court after giving sufficient opportunity to the complainant, to adduce evidence, dismissed the complaint on 7.8.2015, for non prosecution. The said order was challenged before the Sessions Court in Crl.R.P.No.5065/2015 under section 397 of Cr.P.C. The petitioner herein appeared in the said revision petition and opposed the petition. The learned Sessions Judge after hearing both the sides, allowed the said revision petition by the impugned order, subject to payment of cost of one thousand rupees and dismissal of C.C.No.1458/2013 by the trial Court was set aside and the criminal case was restored for disposal, in accordance with law.

17. This would be clear from the judgment in the case of V.K.Bhat, stated supra, wherein the Hon'ble Apex Court considered the question as to whether in such a case where the complaint was dismissed tentamounts to acquittal of the accused and in such case whether the revision lies under section 397(3) of Cr.P.C. or appeal lies and in case no appeal is brought, no revision shall be entertained in view of section 397 of Cr.P.C. The Apex Court in paragraph No.8 of the judgment has held as follows:

22. Therefore this Court has consistently held that where the complaint was dismissed for non prosecution, appeal lies to the High Court under section 378(4) of Cr.P.C. and not a revision under section 397 of Cr.P.C. However this Court in Crl.P.No.3918/2015 decided on 26.8.2015, was not inclined to interfere with the order passed under section 397 of Cr.P.C. by the revisional Court, in restoring the complaint dismissed for default.

23. This Court in Crl.P.No.102192/2018, decided on 6.2.2019, did not interfere with the order passed by the revisional Court in restoring the complaint, which was dismissed for non prosecution. However in view of the judgment of the Hon'ble Apex Court in V.K.Bhat's case stated supra and also in the case of Associated Cement Company Limited stated supra, this Court holds that the revision petition filed by the respondent before the learned Sessions Judge was not maintainable and that the order of dismissal of the complaint for non prosecution ought to have been challenged before the High Court in an appeal under section 378(4) of Cr.P.C. Therefore the learned Sessions Judge ought not to have entertained the criminal revision petition and ought not to have allowed the same. Therefore the impugned order passed by the revisional Court in allowing the Crl.R.P.No.5065/2015 dated 24.8.2016 is liable to be quashed/set aside.