IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 Crl.MC.No. 2009 of 2011() ------------------------- CRRP.134/2008 of SESSIONS COURT, THRISSUR CC.373/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... PETITIONER/COMPLAINANT(S): --------------- T.O.VARGHESE, S/O.OUSEPH, THEKKEKKARA THARAKAN HOUSE, CHITTILAPILLY DESAM & VILLAGE, THRISSUR. BY ADV. SRI.K.A.SREEJITH RESPONDENT(S): --------------- 1. N.N.BALAN, S/O.NEDIYEDATHVALAPPIL NARYANAN, PULIKKATT, KOLALAMBA P.O., EDAPPAL, MALAPPURAM, PIN-679576. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI. JAYASURYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: APPENDIX PETITIONERS ANNEXURES A1. COPY OF THE COMPLAINT AND ORDER IN C.C.373/07 BEFORE J.F.C.M.NO.1, THRISSUR A2. COPY OF THE ORDER IN C.C.373/07 IN THE FILES OF J.F.C.M. NO.1, THRISSUR A3. COPIES OF THE DELAY PETITION, AND CRL.R.P. 134/2008 IN THE FILES OF SESSIONS COURT, THRISSUR. A4. COPIES OF ORDERS IN DELAY PETITION, AND CRL RP 134/2008 IN THE FILES OF SESSIONS COURT, THRISSUR. RESOPONDENT'S EXHIBITS NIL // TRUE COPY // PA TO JUDGE kkj THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.2009 of 2011 --------------------------------------- Dated this 01st day of July, 2011 ORDER Notice to first respondent is dispensed with since learned Sessions Judge had not issued notice to him. Learned Public Prosecutor has taken notice for the second respondent. 2. Petitioner is the complainant in C.C.No.373 of 2007 of the Court of learned Judicial First Class Magistrate-I, Thrissur. He prosecuted the first respondent for offence punishable under Sec.138 of the Negotiable Instruments Act. Learned Magistrate took cognizance of the offence and the case was posted for evidence of petitioner on 05.09.2008. That day, petitioner remained absent. Learned Magistrate acquitted petitioner under Sec.256(1) of the Code of Criminal Procedure (for short, "the Code”). Challenging that acquittal petitioner filed Cr.R.P.No.134 of 2008 before the learned Sessions Judge, Thrissur. That revision was accompanied by C.M.P.No.4696 of 2008 to condone the delay. Learned Sessions Judge dismissed that petition for the reason of default since correct address of first respondent was not furnished. Consequent to that dismissal, the revision also was dismissed. The said orders are under challenge. I have heard learned Public Prosecutor also. Crl.M.C.No.2009 of 2011 -: 2 :- 3. I am persuaded to think that revision itself was not maintainable since the first respondent was acquitted under Sec.256(1) of the Code in a case instituted otherwise than on a police report. When an order of acquittal is passed on a complaint, remedy available to the complainant is to file appeal with special leave under Sec.378(4) of the Code. When such appeal is provided, no revision would lie in view of Sec.401(4) of the Code. That position is clarified by this Court on various occasions (See Krishanlal Oberoi Vs. Corporation of Cochin (1978 KLT SN 138 Page 58). 4. In the view of that, remedy available to the petitioner is to challenge the order of learned Magistrate acquitting the first respondent in appeal under Sec.378(4) of the Code. In the circumstance I do not find reason to interfere with the dismissal of the order. But I make it clear that notwithstanding the dismissal of the revision it is open to the petitioner to challenge the order of learned Magistrate acquitting first respondent under Sec.256(1) of the Code in an appeal under Sec.378(4) of the Code subject of course to law of limitation and power of the Court to condone the delay, if any. This criminal miscellaneous case is disposed of as above. (THOMAS P JOSEPH, JUDGE) Sbna/-