1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 572 of 2009 P.K. Agarwal & ors. ... Petitioners versus M/s.Edge Communications Pvt.Ltd & ors ... Respondents ... Mr. V. Krishna i/b M/s.Juris Consultis for the petitioners Mr.Mihir Desai for respondent no.1. Mr.A.S. Shitole APP for the State. CORAM : D.G. KARNIK, J. DATED : 11th December 2009 P.C. 1. Rule. By consent Rule is made returnable forthwith. Heard. 2. By this petition, the petitioner challenges the order dated 6th September 2008 passed by the City Civil & Sessions Judge, Gr. Bombay allowing Criminal Revision Application no.150 of 208 and thereby setting aside the order dated 6th September 2004 passed by the Metropolitan Magistrate dismissing the complaint in default of appearance of the complainant. 2 3. Respondent no.1 filed a complaint against the petitioner u/s.138 of the Negotiable Instruments Act in the Court of Metropolitan Magistrate, Esplanade Court, Mumbai. The complaint was numbered as Criminal Case no.581/S/2002 and the process was issued against the petitioner. The matter was thereafter adjourned from time to time and was posted on 6th September 2004. On that day, the complainant was absent and therefore, the learned Magistrate dismissed the complaint by passing the following order:- “Complainant absent. His advocate absent. Accused present with advocate. Complaint is disposed of for want of prosecution” 4. This order was challenged by the complainant by filing a revision along with an application for condonation of delay. The Sessions Judge allowed the revision and quashed the order. The learned Sessions Judge held that though the order of dismissal was passed under purported exercise of jurisdiction under section 256 of the Code of Criminal Procedure, the exercise of jurisdiction and power u/s. 256 was improper inasmuch as the plea of the petitioner was not recorded and therefore, Magistrate could not have dismissed the complaint. 5. In Gajanan Parshuram Chopade Vs. Mahatma Jyotirao Phule Gramin Bigarsheti, 2009(1) Bom.C.R. (Cri.) 642 a Division Bench of this court has held that no revision lies against an order passed u/s.256 of the Code of Criminal Procedure but such order can be challenged only by means of an appeal. This court has held that an order passed u/s. 256 amounts to an order of acquittal and only an appeal would lie to 3 the High Court against that order. Once the Sessions Judge came to the conclusion that the order passed by the Magistrate on 6th September 2004 passed in purported exercise of a power under 256 of the Code of Criminal Procedure, he could not have entertained the revision. An order passed u/s.256 can be challenged only by means of an appeal as has been held by the Division Bench. The Sessions Court therefore lacked jurisdiction to entertain the revision. 6. Consequently, the order of the Sessions Judge is required to be set aside as being without jurisdiction. Writ Petition is accordingly allowed and rule is made absolute in terms of prayer clause (b). 7. It is clarified that this order would not take away the right of the petitioner to file an appeal, subject to law of limitation. (D.G. KARNIK,J.)