Case Note & Summary
The petitioner, Smt. G. Kamala, was the accused in a complaint filed by the respondent, Umesh Shetty, under Section 138 of the Negotiable Instruments Act, 1881. The respondent alleged that the petitioner had taken a loan of Rs.30 lakhs and issued a cheque dated 15.7.2007, which was dishonoured. The Trial Court (III Addl. Civil Judge (Jr.Dn) and JMFC, Udupi) dismissed the complaint under Section 256 Cr.P.C. on 14.05.2010 due to the absence of the complainant. The respondent filed a criminal revision petition before the Sessions Court (Fast Track Court, Udupi), which set aside the dismissal and restored the complaint on 01.12.2010. The petitioner then filed the present revision petition before the High Court. The High Court examined the legality of the Sessions Court's order. It noted that the Trial Court had dismissed the complaint for non-appearance of the complainant, which amounted to an acquittal under Section 256 Cr.P.C. The Sessions Court, in revision, set aside that order and restored the complaint. The High Court held that the Sessions Court erred in doing so because the dismissal under Section 256 Cr.P.C. is final and cannot be restored except by the same court under its inherent powers, which were not invoked. The High Court allowed the revision petition, set aside the Sessions Court's order, and restored the Trial Court's order of acquittal.
Headnote
A) Criminal Procedure Code - Section 256 Cr.P.C. - Dismissal of Complaint for Non-Appearance - Restoration - The Trial Court dismissed the complaint under Section 256 Cr.P.C. due to the absence of the complainant. The Sessions Court set aside the dismissal and restored the complaint. The High Court held that the Sessions Court erred in restoring the complaint without considering that the complainant had failed to appear and that the dismissal was proper. (Paras 1-5) B) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of Cheque - Complaint - The respondent-complainant alleged that the petitioner-accused issued a cheque for Rs.30 lakhs which was dishonoured. The complaint was dismissed for non-prosecution. The High Court restored the order of acquittal, holding that the Sessions Court had no jurisdiction to restore the complaint after dismissal under Section 256 Cr.P.C. (Paras 2-5)
Issue of Consideration
Whether the Sessions Court was justified in setting aside the order of acquittal passed by the Trial Court under Section 256 Cr.P.C. and restoring the complaint, in the absence of the complainant.
Final Decision
The High Court allowed the revision petition, set aside the order of the Sessions Court dated 01.12.2010, and restored the order of the Trial Court dated 14.05.2010 dismissing the complaint.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- Section 256 Cr.P.C.
- dismissal for non-appearance of complainant
- restoration of complaint
- inherent powers of court
