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JOHARIMAL v RAMESH - CRLMP Case No. 668 of 2003 [2007] RD-RJ 3626 (27 July 2007)





(Joharimal (Partner) V/s M/s Jodhana Chemical)

Date of Order : 27/07/2007



Mr. K.L.Maheshwari, for the petitioner.

None present for the respondent though served.


By the instant criminal misc. petition under Section 482 Cr.P.C., the petitioner has challenged the order dated 22.10.2002 passed by the Additional Sessions Judge No.1,

Jodhpur (for short 'the revisional court' hereinafter) whereby the revision petition filed by the respondent against the order dated 5.12.2001 passed by Judicial Magistrate No.4, Jodhpur (for short 'the trial court' hereinafter) was allowed.

I have heard learned counsel for the parties.

Carefully gone through the orders passed by the courts below and the record of the trial court.

The respondent filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act' hereinafter) against the petitioner before the trial court being

Criminal Case No.4449/99. The substance of the accusation was read over to the petitioner. The matter was posted for evidence of the complainant and his witnesses. Several opportunities have been availed by the complainant, but the complainant failed to produce the witnesses except the witness Ramesh Lohihya PW-1.

He also did not appear for cross-examination and therefore, his statement remained in complete. The matter remained on the

Board of the trial court for long time for recording the evidence of the complainant and his witnesses and lastly it was posted for recording of the evidence of the complainant on 5.12.2001. On 5.12.2001, neither the complainant appeared nor produced any witness. The trial court noticing the fact that reasonable opportunities have been granted to the complainant which he failed to avail and thus closed the evidence and on hearing the matter came to the conclusion that the complainant has failed to prove the case against the petitioner accused beyond reasonable doubt and accordingly the petitioner has been acquitted. That order was challenged by the respondent complainant before the revisional court by way of revision.

Learned counsel for the petitioner submits that in a complaint case against acquittal, a criminal revisional does not lie as a leave to appeal and appeal to High Court has been provided under Section 378 (4) Cr.P.C.

Section 378(4) Cr.P.C. reads as under:-

"Section 378 (4) If such an order of acquittal is passed in any case instituted upon complaint and the

High Court, on an application made to it by the complainant in this behalf, grants leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

Thus, the only remedy against an order of acquittal in a case instituted on complaint is leave to appeal under sub- section (4) of Section 378 Cr.P.C. and not the revision and therefore, the order of the revisional court is without jurisdiction.

In this view of the matter the order impugned passed by the revisional court cannot sustain and is liable to be set aside.

In the result, the criminal misc. petition is allowed.

The order dated 22.10.2002 passed by the Additional Sessions

Judge, No.1, Jodhpur in Criminal Revision No.48/02 is hereby set aside.

(H.R.PANWAR),J. rp


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