Court No.6 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 42 of 2005 Sri Jagannath Patra son of Sri Prashanna Patra, resident of Neelanchal Bhawan, Manpur North, Rampur Road, Haldwani, District Nainital ... Applicant Vs 1- State of Uttaranchal 2- Smt. Updesh Garg wife of Krishna Gopal Garg, Resident of Bhola Nath Garden, Haldwani District Nainital, at present Resident of Gunj, Moradabad District Moradabad ... Respondents Sri Lalit Sharma, learned counsel for the applicant, Learned A.G.A. for respondent no.1. Sri Lalit Belwal, Sri Piyush Garg, learned counsel for respondent no.2. Dated: February 14, 2008 Hon’ble B. C. Kandpal, J. By way of this petition under Section 482 of Cr.P.C. the petitioner has challenged the judgment and order dated 2.6.2004 passed by Sessions Judge, Nainital in Criminal Revision No. 16 of 2004, Smt. Updesh Garg versus State of Uttaranchal and others. Brief facts of the case giving rise to this petition are that cognizance against the petitioner was taken by Judicial Magistrate, Haldwani under Section 138 of Negotiable Instruments Act on 28.04.2000. After the accused/petitioner was summoned, the trial continued before the court of Judicial Magistrate, Haldwani. On 18.03.2004, the complainant/respondent no. 2 could not appear before the court, hence the complaint filed by respondent no. 2 was dismissed by the Magistrate. Thereafter, the complainant preferred the application for restoration of the order dated 18.03.2004. The application filed by respondent no. 2 was again dismissed by the Magistrate vide order dated 12.04.2004. Feeling aggrieved by aforesaid both the orders, the complainant preferred the revision before the court of learned Sessions Judge, Nainital. The learned Sessions Judge after having considered the entire material available on record was pleased to allow the revision vide judgment and order dated 2.6.2004. Learned Sessions Judge set aside both the orders dated 18.03.2004 and 12.04.2004 passed by Judicial Magistrate, Haldwani and directed the trial court to decide the case in accordance with law. Felling aggrieved by the aforesaid impugned judgment and order of lower revisional court, the petitioner has preferred this petition under Section 482 of Cr. P.C. before this Court. Heard Sri Lalit Sharma, learned counsel for the petitioner, learned A.G.A. for respondent no.1, Sri Lalit Belwal, learned counsel for respondent no. 2 and perused the record. Learned counsel for the petitioner has contended that the complaint was dismissed in default by the Magistrate in exercise of power given by Section 256 of Cr. P.C. and upon dismissal of the complaint the accused/petitioner stood acquitted and not discharged, therefore, only an appeal to the High Court will lie against the order of acquittal and resort to the revision under Section 397 of Cr. P.C. before the Sessions Judge was without jurisdiction. He has further submitted that the order of learned Sessions Judge entertaining the revision against an order which was appealable and resorting the criminal complaint, is illegal, erroneous and without jurisdiction. On the other hand, learned counsel for respondent no.2 has made the rival contention that the revision against the order of dismissing the complaint in default was maintainable and this Court in exercise of power under Section 482 of Cr.P.C. can pass necessary order to secure the ends of justice. It is not disputed in this case that the dismissal of the complaint is after the summoning order against the accused/petitioner was passed. Therefore, once Section 256 of Cr.P.C. comes into play, 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 the acquittal. Learned counsel for respondent no. 2 has contended that respondent no. 2 may be given liberty to challenge the order of the learned Magistrate dated 18.03.2004 thereby dismissing the complaint, by adopting an appropriate remedy of filing the appeal under Section 378 of Cr.P.C. In view of the specific provisions of Cr.P.C. as well as the contention raised by learned counsel for respondent no. 2, I am of the view that the impugned judgment and order dated 2.6.2004 passed by Sessions Judge, Nainital, is without jurisdiction and the same is set aside. However, respondent no. 2 may, if so advised, file an appeal against the order of learned Magistrate dated 18.03.2004 thereby dismissing the complaint, in accordance with law. With the aforesaid observations, the petition is finally disposed of. (B.C. Kandpal, J.) SP