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SCR.A/720/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 720 of 2008
=========================================================
VIKRAM
THAKUR - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
AJAY R MEHTA for
Applicant(s) : 1,
MR. R.C. KODEKAR ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
MR MANISH J PATEL for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 25/09/2008
ORAL
ORDER
1. Rule.
Shri Manish J. Patel, learned advocate waives service of notice of
rule on behalf of the respondent No.2 herein original complainant and
Shri R.C.Kodekar, learned A.P.P. for the respondent State. With the
consent of the parties, the matter is taken up for final hearing
today.
2. Respondent
No.2 herein original complainant has filed a complaint against the
petitioner herein on 14.6.1999 for the offences punishable under
Section 138 of the Negotiable Instruments Act and the same was
registered as Criminal Case No. 2086 of 1999. The said Criminal Case
was ordered to be dismissed by the learned Metropolitan Magistrate,
Court No. 4, Ahmedabad vide order dated 23.3.2006 as neither the
complainant nor their advocate was present and the same was pending
since long time by further observing that even the original
complainant has not cared to serve the summons/ warrant upon the
accused. Being aggrieved and dissatisfied with the order passed by
the learned Metropolitan Magistrate, Court No.4, Ahmedabad dated
23.3.2006 passed in Criminal Case No. 2086 of 1999 in dismissing the
same, the respondent No.2 herein original complainant preferred
Criminal Revision Application No. 32 of 2007 before the learned City
Civil Court, Ahmedabad and learned City Civil Judge, Evening Court
No. 16 by his impugned judgment and order dated 17.1.2008 allowed the
said Revision Application by quashing and setting aside the order
dated 23.3.2006 passed by the learned Metropolitan Magistrate,
Ahmedabad passed in Criminal Case No. 2086 of 1999 and remanded the
matter to the learned Magistrate for final hearing. Being aggrieved
and dissatisfied with the judgment and order passed by the Revisional
Court dated 17.1.2008 passed in Criminal Revision Application No. 32
of 2007, petitioner original accused has preferred the present
Special Criminal Application under Article 227 of the Constitution of
India.
3. Learned
advocate for the petitioner has submitted that in the facts and
circumstances of the present case, the complaint/ criminal case filed
against the petitioner was dismissed for default/non prosecution by
the learned Metropolitan Magistrate and, therefore, an order
dismissing the complaint for default/non prosecution would amount to
an acquittal and, therefore, revision application before Revisional
Court was not maintainable. Therefore, it is submitted that impugned
order passed by the learned Revisional Court was lacking in
jurisdiction. It is submitted that against the order of dismissal of
the complaint, remedy by way of appeal was available to the original
complainant. Learned advocate for the petitioner has relied upon the
decision of the learned Single Judge of this Court in the case of
Yogesh Babulal Shah V/s. K.S. Bhasin and Ors. reported in
2005(3) GLH, 553, wherein it is clearly stated that as per the legal
position, the order passed by the learned Magistrate dismissing the
complaint for want of prosecution and non-availability of complainant
had an effect of acquittal and
revision application cannot be entertained, as such application would
not lie since the complainant ought to have preferred appeal against
the order of acquittal seeking appropriate leave of the Court.
4. Learned
advocate for the respondent No.2 original complainant is not in a
position to dispute the aforesaid proposition of law and / or show
any other judgment taking contrary view.
5. Considering
the above and in view of the aforesaid order of the learned trial
Court dismissing the complaint for want of prosecution and
considering the aforesaid decision, the said order would have an
effect of acquittal and, therefore, the revision application against
the said order was not maintainable. Whether the said order was legal
and proper the said question would arise if the revision application
was maintainable. Since, the appeal provided in the Code is
maintainable and, therefore, revision application is expressly barred
where remedy of appeal is available, revision application could not
have been entertained by the Revisional Court. Therefore, it has to
be held that the impugned order was illegal and, therefore, requires
to be quashed and set aside.
6. For
the reasons stated above, present petition succeeded . The impugned
judgment and order passed by the learned City Civil Judge, Evening
Court No. 16, Ahmedabad dated 17.1.2008 passed in Criminal Revision
Application No. 32 of 2007 is hereby quashed and set aside. It will
be open for the respondent No.2 original complainant to prefer appeal
with leave to appeal as provided under the code. Rule is made
absolute.
(M.R.SHAH,
J.)
kaushik
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