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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 26TH DAY OF AUGUST 2015

BEFORE

THE HON’BLE MRS.JUSTICE RATHNAKALA

CRIMINAL PETITION NO.3918/2015

BETWEEN:

SRI N.S.RUDRESH
S/O N.Y.SRIKANTAIAH
AGED ABOUT 57 YEARS
RESIDING AT NO.52,
RANGANATH NILAYA
9TH ‘F’ MAIN ROAD,
BHAIRAVESHWARA NAGAR,
NAGARABHAVI MAIN ROAD,
BANGALORE – 560 072. …PETITIONER

(BY SRI RUDRAPPA P., ADV.)

AND:

SRI GOPAL D.S.

S/O LATE SIDDAPPA
AGED 52 YEARS
RESIDING AT NO.187/2,
MUDDANNA LAYOUT,
HENNUR CROSS,
BANGALORE – 560 043. ...RESPONDENT

(BY SRI S.P.S.KHADRI, ADV.)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION

482 OF CR.P.C. PRAYING TO QUASH/SET ASIDE THE ORDER
DATED 30.04.2015 IN CRL.R.P. NO.169/2014 PASSED BY THE
HON’BLE SESSIONS JUDGE, BANGALORE (CCH-52) AS PER
ANNEXURE-A CONSEQUENTLY CONFIRMING THE ORDER
DATED 7.4.2014 PASSED BY THE LEARNED MAGISTRATE
(22ND ACMM), BANGALOREB IN C.C.NO.32430/2009.

THIS CRIMINAL PETITION COMING ON FOR

ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:

ORDER

The petitioner herein is the accused of the proceedings

under Section 138 of the Negotiable Instruments Act, in

C.C.No.32430/2009 on the file of the XXII Additional Chief

Metropolitan Magistrate, Bangalore.

2. The date on which the case was set down for recording

the statement of the accused under Section 313 of Cr.P.C., both the

complainant and the accused, since remained absent, the Court

presuming that the parties might have settled their case and the

complainant is not interested to prosecute the case, dismissed the

case for non-prosecution and for default. Aggrieved by the said

order, the complainant took the matter before the Sessions Court
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in Criminal Revision Petition No.169/2014 before the LI

Additional City Civil and Sessions Judge, Bangalore City. The

Revisional Court allowed the revision petition, set aside the order

passed by the Trial Court, restored the matter, directed to proceed

further in the matter from the stage at which the case was

dismissed for default.

3. Now it is the submission at the Bar that consequent upon

the order passed by the Revisional Court, the case is restored;

statement of the accused under Section 313 of Cr.P.C. is recorded

and he has also adduced rebuttal evidence and the matter is set

down for arguments.

4. The petitioner in this petition is questioning the

maintainability of a revision petition under Section 397 of Cr.P.C.

in respect of the order dismissing the complaint since the order

amounts virtually to acquitting the accused and same shall be

challenged in an appeal, but not by way of the revision. The order

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passed by the Revisional Court without jurisdiction is liable to be

quashed.

5. The very same question of law was raised by the petitioner

before the Revisional Court, but the concerned Court relying on

the observation made in a judgment of the Punjab and Haryana

High Court whereby the judgment of the Apex Court in The

Associated Cement Co.Ltd. –vs- Keshavanand reported in

1998(1) RCR (Criminal) 309 (SC) was cited, has recorded that,

in such situation the remedy available to the complainant is to file

an appeal or revision against such order or a petition under Section

482 of Cr.P.C. for setting aside the order of dismissal and the

revision petition was entertained.

6. Coming to the situation whereby the Court dismissed the

petition for non-prosecution, the hearing was for recording the

statement of the accused under Section 313 of Cr.P.C. and the

presence of the complainant was not at all required on that day;

even if the accused was absent on that day, the Court was obliged
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to procure the accused by issuing Non-bailable Warrant and the

necessary process fee was to be furnished by the complainant in the

office after N.B.W. was ordered. Of course, by catena of

judgments, this Court has held that dismissal of a complaint

amounts to acquittal of the accused from the charges that too, after

the evidence has been recorded. There is no gainsay to the settled

proposition that, the Court while dismissing the complaint for the

absence of the complainant must consider as to whether the

personal attendance of the complainant was essential on that day

for the progress of the case and whether the situation will not

justify for adjournment of the matter. Such verification must be

done by the Court judiciously. Dismissal of a complaint on the day

when his presence was not necessary is not the proper exercise of

power vested with it by proviso to sub-Section (1) of Section 256

of Cr.P.C., which reads thus:

“256. Non-appearance or death of complainant –

(1) ………..
Provided that where the complainant is represented by
a pleader or by the officer conducting the prosecution or where
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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. The petitioner herein has invoked Section 482 of Cr.P.C.

to question the jurisdiction of the Revisional Court in restoring a

complaint dismissed for non-prosecution. When it is noticed that,

the Court below was convinced to exercise its jurisdiction relying

on the observation made by the Apex Court in the case of The

Associated Cement Co.Ltd (supra), and consequently, the

proceedings is restored and the matter is in progress, I am not

inclined to intervene at this stage of the proceedings.

Accordingly, the petition is dismissed.

Sd/-
JUDGE

KNM/-