Hitesh Singhal @ Champak Singhal vs Jitendra Gupta @ Jeetu
2022 Latest Caselaw 1868 MP

                                 1                          MCRC-39609-2019
  IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR
                              BEFORE
          HON'BLE SHRI JUSTICE RAJEEV KUMAR SHRIVASTAVA
                      ON THE 10th OF FEBRUARY, 2022

              MISC. CRIMINAL CASE No. 39609 of 2019

        Between:-
        HITESH SINGHAL @ CHAMPAK SINGHAL S/O
        SHRI   ARUN    SINGHAL VINAY NAGAR,
        SECTOR-4, ANAND NAGAR, DR. KUSUM
        SINGHAL NURSING HOME KI GALI, VISHWAS
        MEDICAL KE PASS, LASHKAR (MADHYA
        PRADESH)

                                                             .....PETITIONER
        (BY SHRI ANANT KUMAR BANSAL, ADVOCATE)

        AND

        JITENDRA GUPTA @ JEETU S/O SHRI
        KEDARNATH GUPTA , AGED ABOUT 32 YEARS,
        OCCUPATION: BUSINESS NARAYAN       KI
        BAGIYA, AWADHPURI COLONY, JIWAJIGANJ,
        LASHKAR (MADHYA PRADESH)

                                                            .....RESPONDENT
        (NONE FOR THE RESPONDENT THOUGH SERVED)
                    (Heard through Video Conferencing)
      This petition coming on for hearing this day, the court passed the
following:
                                  ORDER

This petition under Section 482 of Cr.P.C. has been filed by the petitioner against the order dated 04/04/2019 passed in Criminal Revision No.29/2018 by Sixth Additional Sessions Judge, Gwalior, whereby order dated 30/11/2017 passed in case No.3107/2013 by A.C.J.M. Gwalior, has been set aside.

It is submitted by learned counsel for the petitioner that the petitioner was acquitted by the trial Court vide order dated 30/11/2017 passed in SC NIA No.3107/2013 from the charges under Section 138 of Negotiable Instruments Act (hereinafter referred to as N.I. Act). Against which Criminal Revision was preferred by the respondent which has been allowed by Sixth Additional Sessions Judge, Gwalior vide its order dated 04/04/2019 passed in Criminal Revision No.29/2018 and the order passed by the trial Court has 2 MCRC-39609-2019

been set aside and remanded the matter to the trial Court with the direction to allow the complainant to adduce evidence. Learned counsel for the petitioner has further submitted that the order passed by the Revisional Court is against the law as Criminal Revision is not maintainable against the order passed in a case which is instituted upon a complaint. In support of his submissions,

learned counsel for the petitioner has relied upon the judgments passed in the case of S. Rama Krishna Vs. S. Rami Reddy (Dead) by His LRs & Ors [2008 (2) MPLJ (Cri.) 686] and Martin Vs. Khileshwar Prasad [2014 (1) MPHT 61 (C.G.)]. Hence, considering the aforesaid facts of the case, learned counsel for the petitioner prays for quashing the order dated 04/04/2019 passed by Sixth Additional Sessions Judge, Gwalior in Criminal Revision No.29/2018.

Heard arguments advanced by learned counsel for the petitioner and perused the material documents available on record.

It is apparent from the perusal of documents available on record that the trial Court vide its order dated 30/11/2017 passed in case No.3107/2013 has acquitted the petitioner from the charge under Section 138 of N.I. Act. Whereas, Revisional Court entertained the Criminal Revision and passed the order on 04/04/2019 and remanded back the case to the trial Court. As it is undisputed that the complaint was filed for commission of offence under Section 138 of N.I. Act, therefore, in the present case, Section 378(4) of Cr.P.C. shall be applicable, which runs as under:-

378. Appeal in case of acquittal.-

(1) xxxx

(2) xxxx

(3) xxxx

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, 3 MCRC-39609-2019 on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

In the case of Khileshwar Prasad (supra), it has been held as under:-

"6. Effect of dismissal of any summon trial in terms of Section 256 of Cr.P.C. would be of acquittal. In the matter of Maj. Genl. A.S. Gauraya & another v. S.N. Thakur & another, (1986) 2 SCC 709 , the Supreme Court while dealing with the question of restoration of dismissed complaint and acquittal of the accused on the ground of non-appearance of the complainant has held that "the Magistrate has no jurisdiction to restore or revive the dismissed complaint on a subsequent application of the complainant. The Code does not permit a Magistrate to exercise an inherent jurisdiction which he otherwise does not have".

7. In the light of effect of dismissal of complaint in summon trial cases the remedy to file leave to appeal and appeal under Section 378 (4) of Cr.P.C. is available to the complainant. This is not the case where the applicant is remediless.

8. In these circumstances, in the light of dictum of the Supreme Court in Maj. Genl. A.S. Gauraya (supra) and availability of remedy under the law, I am unable to accept the view taken by the High Court of Karnataka in Smt. R. Rajeshwari (supra).

9. Consequently, the petition is liable to be dismissed and is hereby dismissed reserving aforesaid liberty to challenge the order of dismissal in appeal under Section 378 (4) of Cr.P.C."

In view of the annunciation of law in the case of S. Rama Krishna (supra) a n d Khileshwar Prasad (supra) as well as considering the provisions of Section 378(4) of Cr.P.C, this Court is of the view that the order passed by the Revisional Court, entertaining a Criminal Revision against the order passed in a case which is instituted upon a complaint, is against the provisions of law. Therefore, order dated 04/04/2019 passed in Criminal 4 MCRC-39609-2019 Revision No.29/2018 by Sixth Additional Sessions Judge, Gwalior, is hereby set aside. However, respondent/complainant will be at liberty to take recourse of Section 378(4) of Cr.P.C, if so advised.

Accordingly, this petition stands disposed of with the aforesaid observation.

(RAJEEV KUMAR SHRIVASTAVA) JUDGE Shubhankar Digitally signed by SHUBHANKAR MISHRA Date: 2022.02.10 16:51:39 +05'30'