Allahabad High Court
Sunil Kumar vs State Of U.P. And Another on 4 April, 2023
Bench: Umesh Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Reserved on 24.02.2023
Delivered on 04.04.2023
Court No. - 53
Case :- APPLICATION U/S 482 No. - 2903 of 2023
Applicant :- Sunil Kumar
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Anil Kumar Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Umesh Chandra Sharma,J.
1. Heard Sri Anil Kumar Mishra, learned counsel for the applicant, Sri Pankaj Kumar Tripathi, learned AGA for the State and perused the record.
2. This petition has been filed to quash the order dated 10.11.2022 passed by the Additional Chief Judicial Magistrate, Court No.6, Meerut in Complaint Case No.6600 of 2016 (Sunil Kumar Vs. Amit Kumar), under Section 138 NI Act, Police Station Lalkurti, District Meerut.
3. In the above noted criminal complaint case under Section 138 NI Act when applicant complainant did not appear on 10.11.2022 the trial court considering the fact that the complaint was pending since 02.09.2016, the statement of the accused had been recorded on 08.10.2021 but since then complainant had not filed any affidavit as evidence and was not attending the court from the past several dates, even last opportunity was provided to him even then he neither appeared nor moved any application, the trial court dismissed the complaint under Section 256 CrPC and acquitted the accused.
4. Being aggrieved, this application under Section 482 CrPC has been filed.
5. Learned AGA raised objection regarding maintainability of the application.
6. In this regard, in course of search of relevant judicial citation this Court finds the judgement of the High Court of Himachal Pradesh in HIM Advances and Savings Pvt. Ltd. Vs. Ravinder Kumar Gupta, 2002 CrLJ 4741 in which similar facts were involved. For ready reference relevant portion of the aforesaid judgment is reproduced herein below:-
"2. The undisputed facts are that the petitioner filed a complaint against the respondent in the Court of the learned Additional Chief Judicial Magistrate, Shimla, under Section 138 of the Negotiable Instruments Act, 1881. The complaint was listed for hearing on 18.6.2001 for evidence of the complainant. The complainant, however, applied for exemption, but after hearing the parties, the Court declined the exemption, and rejected the application. Thus, the Court observed that the complainant is not present nor he has taken steps for summoning the witnesses, though three opportunities had already been granted to him, but he has failed to take steps to summon the witnesses and acquitted the respondent under Section 256 of the Code.
4. Section 256 of the Code clearly and unambiguously contemplates that on failure of the complainant to appear on the day appointed for the appearance of the accused or any day subsequent thereto, to which the hearing may be adjourned the Magistrate shall, notwithstanding anything contained in the Code, acquit the accused, unless for some reason he thinks the hearing of the case to some other date in the edge in hand, the impugned order acquitting the respondent has been passed by the learned trial Magistrate because of the absence of the complainant, who was to lead evidence on the date fixed for hearing. Therefore, by virtue of the provisions of Section 256 of the Code, for all intents and purposes the impugned order is an order of acquittal.
5. Sub-section (4) of Section 378 of the Code provides that against an order of acquittal passed in any case instituted upon complaint, the complainant, after grant of special leave to appeal from the order of acquittal may present an appeal to the High Court. Thus, a complainant has a right of appeal against an order of acquittal.
6. Sub-section (1) of Section 410 of the Code provides that where under the 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 would have appealed.
8. Since the remedy of the petitioner was by way of appeal against the impugned order of acquittal, therefore, there being specific grievance, the petitioner cannot be permitted to invoke the inherent jurisdiction of this Court under Section 482 of the Code."
7. In the cited case the complainant had filed a complaint under Section 138 NI Act and when he did not appear before the court, the accused was acquitted which was challenged by the complainant in the High Court by way of a criminal revision and under Section 482 CrPC as well. The High Court of Himachal Pradesh concluded that if an order of acquittal has been passed under Section 256 CrPC, the complainant has a remedy to file an appeal against the acquittal in High Court after grant of special leave to appeal. The Court had also referred Section 410(1) CrPC that where under the Code an appeal lies and no appeal is brought, no proceeding byway of revision shall be entertained at the instance of the party who would have appealed.
8. Whether a petition under Section 482 CrPC lies, has also been discussed by the court that if a remedy of appeal is available the petitioner cannot be permitted to invoke inherent jurisdiction of High Court under Section 482 CrPC.
9. In view of the above discussion, the present petition is not maintainable and is accordingly dismissed without prejudice to any other legal remedy available to the petitioner.
Order Date :- 4.4.2023
Shahroz
