Om Gayatri And Co. And Ors. vs State Of Maharashtra And Anr.
2005 Latest Caselaw 1297 Bom

ORDER

S.P. Kukday, J.

1. Heard. Rule, made returnable forthwith by consent of parties.

2. The petitioners have impugned order dated 20.6.2003 passed by Additional Sessions Judge, Nanded in Criminal Revision No. 24/2002, allowing the revision and setting aside the order dated 14.1.2000 passed by chief Judicial Magistrate dismissing the complaint in S.C.C. No. 1150/ 1997.

3. The facts, relevant for the purpose of deciding this petition are that: Respondent No. 2 is engaged in a wholesale business of selling Dal to the customers on credit basis. Petitioner was a regular customer. For the purpose of clearing the dues, the petitioner issued cheque No. 495330 drawn on Punjab National Bank, Nanded on 25.4.1997 for Rs. 21,010/-. The cheque was deposited by Respondent n6.2 in Peoples Cooperative Bank, Hingoli on 25.4.1997. He was however, in-formed that the cheque was dishonoured. Therefore, notice as required by proviso (b) to Section 138 of Negotiable Instruments Act, was served but as payment was not made, respondent no. 2 filed a complaint in the court of Chief Judicial Magistrate, Nanded on 20.6.1997 against the petitioners for the offence punishable under Section 138 of Negotiable Instruments Act, 1888 (hereinafter to be referred to as N.I. Act). Plea of the petitioner was recorded on 15.11.1999 and the matter was adjourned for recording of evidence to 24.11.1999. It was further adjourned for the same purpose to 6.12. 1999 and then to 24.1.2000. On that day, respondent no. 2 remained absent. Learned Magistrate waited upto 5.00 p.m. However, as Respondent no. 2 did not appear before the Court, he came to the conclusion that Respondent no. 2 is avoiding to adduce evidence. Therefore, by referring to judgment of this Court, reported in 1998 Mah LJ 576 :(1998 Cri LJ 3754) learned Magistrate dismissed the complaint and acquitted the petitioner.

4. Being aggrieved by this order, Respondent no. 2 filed criminal Revision Petition No. 24/2000 in the court of sessions Judge. The matter was heard by Additional Sessions Judge. During the pendency of the Criminal Revision, the petitioner filed an application on 19.6.2003 seeking time to file reply. However, this application was rejected. The matter was heard in the absence of the petitioner, and was allowed by order dated 20.6.2003, setting aside the order of learned Magistrate passed under Section 256 of Cr. P. C. This order is impugned by the petitioner in the present petition on the ground that a revision cannot be filed against the order of acquittal passed under Section 256(1) of the Code of Criminal Procedure.

5. A short point which arises for determination in this petition is whether a revision can be filed against the order of acquittal passed under Section 256 of Cr. P. C.

6. Both the parties are heard at length. According to learned Counsel for the petitioners, only an appeal can be filed against the order of acquittal passed under Section 256(1) of Cr. P. C., therefore, Additional Sessions Judge could not have entertained the revision preferred against order of acquittal. In this view of the matter, the order passed by Additional Sessions Judge in Criminal Revision No. 24/2000 is without jurisdiction and nonest and deserves to be set aside.

7. On the other hand, learned Counsel for respondent no. 2 contends that a complaint is filed under Section 138 of the N.I, Act. It is a non-cognizable offence and, there-fore, Section 249 of Cr. P. C. becomes applicable. In this context the order passed by learned Magistrate can be treated as an order of discharge and revision can be maintained against such an order. Learned Counsel has also referred to the decision of this Court, reported in 2004 ALL MR (Criminal) 1715 to contend that the Sessions Court has jurisdiction to entertain revision against an order of dismissal of the complaint and, therefore, the impugned order will have to be upheld.

8. Before entering the merits of this case, it would ho appropriate to refer to be law of precedent. It is now well settled that the long established principles are to be respected and followed by the courts, because the parties modulate their relationship in consonance with these decisions. In this behalf reference can be made to the ruling of the Supreme Court in the matter of Union of India v. Azadi Bachao Andolan. In this case the Apex Court considered the scope of the doctrine of Stare decisis in the context of the provisions of Taxation Law, in paras 33 and 34 thus : "para 33 - The learned Attorney General justifiably relied on the observations of this Court Mishri Lal v. Dnirendra Nath, in which this Court referred to its earlier decision in Maktul v. Manbhari on the scope of the doctrine of stare decisis with reference to Halsbury's Laws of England and Corpurs Juris Secundum, pointing out that a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by Courts of higher authority other than the court establishing the rule, even though the court before whom the matter arises afterwards might be of a different view." While considering these arguments, it is observed in para 34 that:" We think that this submission is sound and needs to be accepted. It is not possible for us to say that the judgments of the different High Courts noticed have been wrongly decided by reason of the arguments presented by the respondents. As observed in Mishri Lal even if the High Courts have consistently taken an erroneous view (though we do not say that the view is erroneous) , it would be worthwhile to let the matter rest, since large number of parties have modulated their legal relationship based on this settled position of law."

9. Learned Counsel for Resp. No. 2 has also cited a ruling of the Apex Court in the matter of Gajanan v. Seth Brindaban. In that case, the Apex Court was dealing with the provisions of Moneylenders Act. While considering the aspect of binding precedents, in para. 13 of the report, the Apex Court observed : 'There is also another aspect which may legitimately be kept in view. People in arranging their affairs are entitled to rely on a decision of the highest court which appears to have prevailed for considerable length of time and it would require some exceptional reason to justify its reversal when such reversal is likely to create serious embarrassment for those who had acted on the faith of what seemed to be the settled law. Where the meaning of a statute is ambiguous and capable of more interpretations than one, and one view accepted by the highest court has stood for a long period which many transactions such as dealings in property and making of contracts have taken place on the faith of that interpretation the court would ordinarily be reluctant to put upon it a different interpretation which would materially affect those transactions." It is. therefore; apparent that settled law is not usually disturbed in view of the repercussions it can have on the public at large. At this juncture it would be pertinent to consider the principles in respect of the binding nature of the judgments. So far as coordinate benches of the same court are concerned, the precedent is binding only if it considers earlier decisions of the same court. If earlier decisions of the same Court are not consiered or are not brought to the notice of the court, the decision so rendered does not constitute a binding precedents In support of this principle reference can be made to the ruling of the Apex Court in the matter of Government of West Bengal v. Tarun K. Roy. In that case, Their Lordships were considering the service law and the rule of parity in employment. The point in respect of the binding precedents arose in that case. Considering this aspect, the Apex Court observed in para 26 of the report : " In the instant case, the appellant has explained in what circumstances the order of the learned single Judge of the Calcutta High Court is to be obeyed. If rule of law is to be followed, the judicial discipline demands that the Court follows its earlier binding precedents. The Calcutta High Court itself has rejected the challenge and the matter is pending in appeal. The order passed to the contrary by another learned Single Judge in ignorance of the earlier binding precedents by itself would not constitute a binding precedents and may be held to have been rendered per incuriam." The controversy involved in this petition will have to be resolved by keeping in mind these principles.

10. We may now turn to the merits of the case, Learned Counsel for Resp. No. 2 did make an effort to make reference to Section 249 of Cr. P. C. This was probably because similar observations are found in the reasoning of the Sessions Court. In para 6 of the judgment of the revisional court, the court has referred to Section 249 of Cr. P. C. However, after some discussion or the point it has been accepted that whenever a summons procedure or summary procedure is followed, the order of dismissal can be passed only under Section 256(1) of Cr.P.C. Thus, contention of learned Counsel based on Section 249, Cr. P. C. cannot be sustained.

At this juncture, it would be pertinent to reproduce Section 256(1), Cr. P. C. The Section reads as under :

256 (1) Non-appearance or death of complainant. (1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto 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 complainant is represented by a pleader or by the officer conducting the prosecution or 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.

11. Section 256(1) mandates that if the absence of the complainant is not justified, the Magistrate shall acquit the accused. In a summons case, instituted on a complaint, if the complainant is absent on the date of hearing, the Magistrate has to follow either of the three courses, namely. 1) Acquit the accused; 2) to adjourn the case and 3) to dispense with the attendance of the complainant and to proceed with the case. In the present case, the Magistrate found that the complainant was avoiding to lead evidence, therefore, relying on the ruling of this Court reported in 1998 Mah LJ 576 : 1998 Cri LJ 3754 the Magistrate proceeded to pass an order acquitting the accused. Once this order has been passed, the remedy of the complainant is to prefer an appeal under Section 378 of the Code of Criminal Procedure after obtaining leave of the Court as required by Section 378(4) of Cr. P. C. This view is consistently taken by this Court. The earliest decision is that of Justice Vaidya, reported In . This point then, arose in the matter of Dharamaji Gangaram Gholam v. Vithoba Soma Khade, reported in 1992 Mah LJ 118 : 1992 Cri LJ 870. In that case, the accused came to be acquitted in a complaint case by the learned Magistrate for the offences punishable under Sections 417 and 420 read with 34 of the Indian Penal Code, The point whether an appeal lies against the order of acquittal or whether a revision can be maintained arose for the consideration of the Court. Referring to earlier decision of this Court and to the provisions of Section 401(4) which provides that where an appeal lies under the provisions of the Code of Criminal Procedure, and no appeal is brought, no proceeding by way of a revision shall be entertained at. the instance of the party who could have appealed. Daud, J. came to the conclusion that only an appeal can be preferred against the order of acquittal in consonance with provisions of Section 378, Cr. P. C. In this behalf, reference can also be made to another judgment of this Court, reported in 1999 (3) Mah LJ 397 in the matter of Raja s/o Dr. S. P Upadhyay v. State or Maharashtra. In that case also prosecution was for offence punishable under Section 138 of N.I. Act. In the absence of complainant, the learned Magistrate passed an order of discharge. A revision was filed against that order. It was entertained by the Sessions Judge. The order of Sessions Judge was appealed against. In this context, Patel, J. observed in para 9 of the report that: "It cannot be gainsaid that merely because the Magistrate committed an error in recording the order of discharge, that would invest the complainant with a right to prefer a revision and he was justified in doing so. As the order itself is very clear that it has been passed under Section 256(1) of Cr. P.C. 1973, it will necessarily have to be construed an order of acquittal under Section 256(1) and not that of discharge. There is one more distinction which will have to be kept in mind and that is, that once an order of acquittal under Section 256(1) of the Criminal Procedure Code, 1973 is passed, then the complainant is debarred from filing a second complaint on the same facts so long as the order of acquittal is not set aside. Therefore, the only course open to the complainant was to prefer an appeal in the High Court against the said order of the learned Magistrate by special leave of the Court under Section 378(5) of the Criminal Procedure Code, 1973."

12. It may also be worthwhile to refer to the views of other High Courts on the point. In the matter of Krishna Kumar Gupta v. Mohammed Jaros, reported in 2003 Cri LJ 149, while dealing with this point, Mahmood Ali, J. referred to the submissions made on behalf of appellant in para 4 of the report. Its observed : " He had cited Guest Kleen Williams Ltd. v. Murarilal, 1984 Rajdhani LR 32 : 1983 Cri LJ 554, where a Division Bench of this Court held that against an order of dismissal of a complaint under Section 256 of the Cr. P. C. only an appeal lies. He also referred to the judgment of Shri M.M.S. Bedi v. Union Territory of Chandigarh (1986) 89 Pun LR 687; Vinod Kumar v. State of Punjab (1999) 4 Rec Cri Refers 469 and a judgment of Himachal High Court in H.P. Agro Industries Corporation Ltd. v. M.P.S. Chawla (1997) 2 Crimes 591 in support of his argument that the dismissal of the complaint under Section 256 of the Cr. P.C. resulted in acquittal of the accused and an appeal and not the revision will be the remedy to challenge it. " This submissions were accepted by the learned Judge. Dealing with these arguments, the learned Judge observed in para 5: "Counsel for respondent initially justified the order of the Additional Sessions Judge impugned in this petition on the ground that it was not in accordance with the law laid down by the Supreme Court in Associated Cement Co. Ltd. v. Keshavanand and a judgment of the Division Bench of this Court in Shiv Kumar v. Mond. Saghir 1997 JCC 149 : 1997 Cri LJ 1264 but finally conceded that technically speaking revision did not lie against the order of dismissal of a complaint under Section 256, Cr. P. C. in view of the consistence view held by the courts that dismissal resulted in acquittal of the accussed and against the acquittal only an appeal would be the appropriate legal remedy to challenge it," In H.P. Agro Industries Corporation Ltd. v. M.P.S. Chawla reported in 1997 (2) Crimes 591 petition under Section 482 of Cr. P.C. was filed challenging the order of dismissal passed under Section 256 of Cr. P.C. After referring to the decisions of the Supreme Court in Bindeshwari Prasad Singh v. Kali Singh and Maj. Genl. A.S. Gauraya v. S.N. Thakur. Learned Judge observed in para 12 of the report:" There is no denying that the dismissal of the complaint in default under Section 256 of the Code of Criminal Procedure entails the acquittal of the accused. Once an accused has been ac-quitted of the offence, the law provides a remedy by way of an appeal against the order of acquittal. Once a remedy by way of appeal is available to the petitioner under Section 378(4) of the Code of Criminal Procedure, on the failure of the petitioner to avail such a remedy, this Court is not to exercise the inherent powers for interfering with the impugned order.

13. It can be seen that earlier decisions; of this Court and other High Courts have consistently laid down law that only an appeal lies against order of dismissal of the complaint which amounts to acquittal of the accused and, in case of acquittal remedy of revision is not available to the aggrieved party. Not only that under Section 401 of Cr. P.C. there is express bar for entertaining a revision at the instance of the party who could have appealed.

14. Learned Counsel for Reap. No. 2 has made reference to the judgment of this Court in the matter of Mahendra Indermal Borana v. Anil Shankar Joshi reported in 2004 ALL MR (Cri) 1715, to contend that revision can be maintained against the order of acquittal. In that case, reference is made to the judgment of the Supreme Court in the matter of Major General A.S. Gauraya v. S.N. Thakur reported in 1986 Cri LJ 1074. In Mah. Genl. A.S. Gauraya s case, the Apex Court was considering the controversy whether a subordinate criminal court has any inherent jurisdiction outside the provisions of Cr. P. C. and was also incidently dealing with the scope of Article 141 of the Constitution. After referring to the earlier judgment in Bindeshwari Prasad Singh v. Kali Singh it is held that the learned Magistrate had absolutely no jurisdiction to recall the order of dismissing the complaint. The remedy of the respondent was to move the Sessions Judge or the High Court in revision. The point whether an appeal or revision lies against the order of acquittal passed under Section 256(1) Cr. P. C. was not before the Court and was not decided by the Court in this ruling. This judgment therefore is not an authority on the point whether a revision or appeal lies against an order of acquittal passed under Section 256(1) of the Code of Criminal Procedure. Be that, as it may; similar situation arose in the past before this Court in the matter of Dharamji Gangaram v. Vithoba Khade, where. Daud, J. was faced similar dilemma. In that case also, reference was made to the judgment of Sharad Manohar J. in Kokilabai Ramchandre Mahajan v. Gangadhar Shivram Mahajan , wherein it was held that the revision against the order of acquittal is maintainable. After referring to the relevant observations and the legal provisions, Daud J., distinguished the judgment on facts and observed in para 5 page 1217 that : "Had his attention been drawn to Badakas J s decision, perhaps learned Judge may not have chosen to express himself in the broad terms he has done. In the present case, we are also faced with the similar situation. However, in view of the judgments of the Apex Court that the long standing precedents are to be followed, and in view of the fact that while deciding the controversy in the matter of Mahendra Indermal Borana v. Anil Shankar Joshi (supra) the attention of the Court was not drawn to the earlier decisions of this Court as well as of other High Courts holding that in case of order being passed under Section 256(1), Cr. P.C. acquitting the accused, the only remedy is to file an appeal and not a revision. Therefore, appropriate course is to follow the long standing precedent as the law laid down has stood for a long period of time during which many transactions have taken place on the faith of this interpretation of the Court and large number of parties have modulated their legal relationship based on this settled position of Jaw.

15. In this view of the matter, in accordance with the settled position of law Learned Sessions Judge had no jurisdiction to entertain a revision against an order of acquittal passed under Section 256(1) of Cr. P.C. Therefore, the order passed by the learned Sessions Judge is illegal and nonest. The said order deserves to be quashed and set aside. Thus the petition is allowed. Rule is made absolute in terms of prayer Clause (c).

16. At this stage, learned Counsel for Resp. No. 2 submits that in these circumstances, Resp. No. 2 will have to pursue appropriate remedy and whenever any proceeding is initiated, the fact that he was contesting the cause in different courts under reasonable believe that the proceeding instituted by him is maintainable, should be taken into consideration while dealing with the point of limitation. Learned Counsel for the petitioners stipulates that in case such a proceeding is initiated, the point of limitation will not be pressed.