2021 (11) TMI 446

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....rging from the record are that respondent had filed a complaint for offences under Section 138 read with 142 of Negotiable Instruments Act ['the Act" for short'] against the petitioner before the Court of District Mobile Magistrate, Sopore (hereinafter referred to as the trial Magistrate). It seems that during the pendency of the said complaint, the complainant/respondent stopped appearing in the case and on 27.12.2017, the same was dismissed for non-prosecution. 3. The aforesaid order came to be challenged by the complainant/respondent before the Court of Additional Sessions Judge, Sopore (hereinafter referred to as the Revisional Court) by way of a revision petition. The learned Revisional Court, after making an elaborate discu....

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....gistrate in dismissing the complaint was proper. We are only concerned as to what is the appropriate remedy available to a complainant whose complaint has been dismissed in default. 8. The order of dismissal of complaint passed by the learned trial Magistrate simply records dismissal of the complaint but it does not record acquittal of the accused. Section 247 of J&K Code of Criminal Procedure, which is applicable to the instant case, provides the consequences of non-appearance of the complainant. It reads as under: "247. Non-appearance of complainant.--(1) If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto which the hearing may be adjourned, t....

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....2016) 13 SCC 243, has clearly laid down that dismissal of complaint for non-appearance of complainant amounts to acquittal as contemplated under Section 256 of Central Cr.P.C., which corresponds to Section 247 of J&K Cr.P.C. 12. Once it has been held that the dismissal of complaint of the respondent in default has led to the acquittal of the accused/petitioner, the only remedy available to him was to file an appeal against the said order after seeking leave in terms of Section 417 of J&K Cr.P.C. A revision petition against an order of acquittal, which is appealable, is not maintainable in view of sub-section (5) of Section 439 of J&K Cr.P.C., which reads as under: "439. High Court's powers of revision.-- 1. XXX XXX ....