IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.8475/2018 BETWEEN:
F.MUKTHAR @ MUKTHAR, UJJINI, S/O BASHA SAB, AGED ABOUT 45 YEARS, RESIDENT OF 4TH CROSS, AZAD NAGAR, DAVANGERE – 577 002. … PETITIONER (BY SHRI P. PRASANNA KUMAR, ADVOCATE) AND:
1. J. RAJU, S/O JAYAPPA, (SINCE DECEASED BY HIS LRS) (A) SMT. SHYLARAJU, W/O LATE J. RAJU, AGED ABOUT 40 YEARS.
(B) R. SURAJ, S/O LATE J. RAJU, AGED ABOUT 23 YEARS.
(C) R. PRAJWAL, S/O LATE J. RAJU, AGED ABOUT 20 YEARS. ALL ARE RESIDENTS OF NO.20, VINAYAKA EXTN., HOSADURGA TOWN, HOSADURGA TALUK, CHITRADURGA DISTRICT, KARNATAKA – 577 527. … RESPONDENTS (BY SHRI M.R.HIREMATHAD, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE ORDER DATED 02.04.2012 PASSED BY PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN CRIMINAL REVISION PETITION NO.15/2012 THEREBY ALLOWING THE REVISION PETITION FILED BY THE REPSONDENT AND CONSEQUENTLY SETTING ASIDED THE ORDER DATED 24.12.2011 PASSED BY THE LEARNED CITY CIVIL JUDGE (JR. DN.) AND JMFC, HOSADURGA IN C.C. NO.939/2016 (OLD C.C. NO.746/2010) DISMISSING THE COMPLAINT AND CONSEQUENTLY, ALLOW THE PRESENT CRIMINAL PETITION.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Respondents’ predecessor initiated proceedings under Section 138 of the Negotiable Instruments Act in P.C.R.No.81/2010 on the file of the Additional Civil Judge and JMFC, Hosadurga and renumbered as C.C.No.146/2010. After taking cognizance, by order dated 28th December 2010, learned Magistrate issued process to the accused. Accordingly, summons were issued. An application under Section 87(a) of Cr.P.C. was moved on behalf of the complainant for issuance of NBW. By order dated 7th July 2011, the learned Magistrate dismissed the said application and directed the complainant to furnish correct address and to take steps. After few hearings, the complaint was dismissed for default, by order dated 24th December 2011. Legal representatives of the original complainant challenged the said order in Crl.R.P. No.15/2012. The learned Principal District and Sessions Judge, Chitradurga, by order dated 02.04.2012 has allowed the said petition. Feeling aggrieved, the accused is before this Court.
2. Sri. P. Prasanna Kumar. P., learned advocate for the petitioner placing reliance on the decisions in the case of KRISHNA KUMAR GUPTA vs. MOHAMMED JAROS AND OTHERS decided on 05.08.2002 in Crl.R.No.398/2000 and in the case of ASSOCIATED CEMENT CO. LTD., vs. KESHVANAND – (1998) 1 SCC 687 submitted that against an order of dismissal of criminal case under Section 256 of Cr.P.C., revision petition is not maintainable and the only recourse open to the complainant is to file an appeal before this Court.
3. Learned Advocate for the respondents argues in support of the impugned order.
4. I have carefully considered the rival contentions and perused records.
5. It is not in dispute that process was issued against accused. Thereafter, the complaint has been dismissed for default. The distinction between dismissal of a complaint prior to summoning of accused and after summoning the accused, has been explained by the Delhi High Court in Kalpana Tyagi Vs. Sneh Lata Sharma, decided on 17 March, 2003 and reported in 2003 CriLJ 3395 as follows:
“8. A distinction, therefore, has to be drawn in regard to the complaints dismissed prior to the summoning of an accused and those dismissed subsequent to the summoning of the accused if a complaint is dismissed prior to the summoning of an accused the order may be challenged by way of filing a revision but once Section 256 comes into play, the dismissal of a complaint has the effect of acquittal of an accused and only an appeal can be filed under Section 378 of the Code to challenge his acquittal.”
6. Thus, the dismissal order has been passed after issuance of summons. Therefore, the remedy available to the complainant is to file an appeal. Hence, the impugned order passed by the learned Sessions Judge entertaining the revision petition is unsustainable.
7. Resultantly, this petition merits consideration and hence, the following:
ORDER a. The petition is allowed.
b. Order dated 02.04.2012 passed in Cr.R.P.No.15/2012 is set aside.
c. Respondents are granted liberty to challenge the order dated 24.12.2011 passed in C.C. No.939/2016 (Old C.C.No.746/2010) by the learned City Civil Judge (Jr. Divn.) & JMFC, Hosadurga, in appropriate proceedings.
Sd/- JUDGE vp