- 1 - HC-KAR NC: 2026:KHC:662 CRL.P No. 13177 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA CRIMINAL PETITION NO. 13177 OF 2023 BETWEEN: SRI LAKSHMINARAYANA P.S., S/O SIDDALINGAIAH AGED ABOUT 46 YEARS R/O NO.716, SUBASH NAGAR, NELAMANGALA TOWN – 562 123 BENGALURU RURAL DISTRICT. …PETITIONER (BY SRI V.B.SIDDARAMAIAH, ADVOCATE) AND: SRI VENKATAPPA S/O LATE THIMMAIAH AGED ABOUT 61 YEARS R/O VAKKODI SIDDHARTHANAGAR POST TUMAKURU – 572 106. …RESPONDENT (BY SRI N.SURESHA, ADVOCATE) THIS CRL.P. FILED U/S 482 CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 09.11.2023, PASSED BY THE 7TH ADDL. DISTRICT AND SESSIONS JUDGE, TUMAKURU, IN Digitally signed by SANJEEVINI J KARISHETTY Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:662 CRL.P No. 13177 of 2023 CRL.R.P. NO.35/2023, WHICH IS FILED AGAINST THE ORDER OF THE DISCHARGE DATED 14.02.2023, PASSED IN C.C.NO.58/2016 BY THE 1ST ADDL. CIVIL JUDGE AND JMFC, TUMAKURU, DISCHARGING THE PETITIONER, FOR THE ALLEGED OFFENCE P/U/S 138 OF N.I. ACT, INITIATED ON THE COMPLAINT OF THE RESPONDENT. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioner is before this Court calling in question an order dated 09.11.2022 passed by VII Additional District and Sessions Judge, Tumkuru in Crl.R.P.No.35/2023. 2. Heard Sri. V.B. Siddaramaiah, learned counsel appearing for the petitioner and Sri. N. Suresh, learned counsel appearing for the respondent. 3. The petitioner is the accused. The respondent is the complainant. The proceedings in C.C.No.58/2016 registered for offences punishable under Section 138 of Negotiable - 3 - HC-KAR NC: 2026:KHC:662 CRL.P No. 13177 of 2023 Instruments Act, 1881 ('the NI Act' for short) comes to be dismissed for its non-prosecution by an order dated 14.02.2023, thereby discharged the accused. The matter was at the stage of evidence. The complainant failed to appear. The complainant then challenges the said order of dismissal for its non-prosecution and the consequent acquittal before the Sessions Court in Crl.RP.No.35/2023. The learned Sessions Judge allows the criminal revision petition and remits the matter back to the concerned Court for consideration of a fresh. The accused is before this Court on the score that the revision petition was not maintainable, as the discharge of the accused amounted to acquittal and if it is an acquittal, an appeal ought to have been preferred and not a revision petition. The issue whether a dismissal for non-prosecution of a proceeding under Section 138 of the NI Act would amount to acquittal of the accused and if it amounts to acquittal of the accused, whether an appeal should be preferred or a revision is maintainable is no longer res integra. - 4 - HC-KAR NC: 2026:KHC:662 CRL.P No. 13177 of 2023 4. The Apex Court, in the case of V.K. BHAT v. G. RAVI KISHORE1, has held as follows: “…. …. …. 5. An application was filed before the High Court by the appellant on the ground that a second revision is not maintainable. The High Court held that the Metropolitan Sessions Judge after being satisfied that the earlier order was passed only on technicalities, had entertained the second revision, and, therefore, the order passed by the Metropolitan Sessions Judge was not illegal. Challenging the said decision of the High Court, this special leave petition has been filed. 6. The learned counsel appearing on behalf of the appellant raised the point before us that the second revision petition is not maintainable and he further drew our attention to Section 256 of the Criminal Procedure Code and submitted that dismissal in default tantamounts to acquittal and, therefore, the only remedy available to the respondent complainant was by way of appeal under Section 378(4) CrPC. Further, the respondent could have the benefit of filing a second revision petition. He submitted that the second revision petition is not maintainable. 7. The learned counsel duly took us to Sections 256, 378, 397(3), 399 and 401(4) of the Code of Criminal Procedure and submitted that in accordance with Section 256, if the summons has been issued on complaint, the Court has power to dismiss the said complaint when a complainant does not appear before the court to pursue the complaint or for any other reason, and in such a case, the Magistrate shall acquit the accused. Therefore, in the instant case, the dismissal of the complaint tantamounts to acquittal of the appellant. 1(2016) 13 SCC 243 - 5 - HC-KAR NC: 2026:KHC:662 CRL.P No. 13177 of 2023 8. The learned counsel for the appellant further contended that the procedure laid down in the Code would also show that under Section 397(3), where both the Sessions Judge and the High Court have concurrent powers, second revision would not be competent. He further contended that under Section 399(3), where any application for revision is made before the Sessions Judge, the decision of the Judge thereon in relation to such person shall be final and no further revision shall be entertained by the High Court or any other court. He further submitted that under Section 401(4) CrPC, where an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained. Therefore, he submitted that the Sessions Judge could not have entertained the second revision. 9. The learned counsel submits that in view of the said provisions of the Code of Criminal Procedure, the High Court is not right to hear out the second revision petition, and thus the order passed by the High Court is not sustainable under the provisions of law. 10. After hearing the learned counsel for the parties, we find that there is some force in the submissions made by the learned counsel appearing for the appellant and we hold, in the facts of the case, that dismissal of the complaint for non- appearance of the complainant amounts to acquittal as contemplated in Section 256 of the Code of Criminal Procedure. 11. Accordingly, we set aside the order passed by the Metropolitan Sessions Judge, Nampally in second revision petition as well as the judgment [V.K. Batt v. G. Ravi Kishore, 2011 SCC OnLine AP 951] passed by the High Court upholding the same. We do not intend to give any further comments in the matter. - 6 - HC-KAR NC: 2026:KHC:662 CRL.P No. 13177 of 2023 12. However, observing the amount involved in this case, we only grant liberty to Respondent 1 to take such steps as may be advised, in accordance with the provisions available in law and to proceed with the matter before the appropriate forum within a period of two weeks from the date of receipt of copy of this order.” (Emphasis supplied) Prior to the afore-quoted judgment of the Apex Court, the High Court of Bombay, in the case of OM GAYATRI & CO. v. STATE OF MAHARASHTRA2, has held as follows: “…. …. …. 9. We may now turn to the merits of the case, Learned Counsel for Resp. No. 2 did make an effort to make reference to Section 249 of Cr. P.C. This was probably because similar observations are found in the reasoning of the Sessions Court. In para 6 of the judgment of the revisional court, the court has referred to Section 249 of Cr. P.C. However, after some discussion or the point it has been accepted that whenever a summons procedure or summary procedure is followed, the order of dismissal an be passed only under Section 256(1) of Cr. P.C. Thus, contention of learned Counsel based on Section 249, Cr. P.C. cannot be sustained. 10. At this juncture, it would be pertinent to reproduce Section 256(1), Cr. P.C. The section reads as under: “256 (1) Non-appearance or death of complainant. (1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto which the hearing may be adjourned, the complainant does not appear, the Magistrate shall 22005 SCC OnLine Bom 1622 - 7 - HC-KAR NC: 2026:KHC:662 CRL.P No. 13177 of 2023 notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.” 11. Section 256(1) mandates that if the absence of the complainant is not justified, the Magistrate shall acquit the accused. In a summons case, instituted on a complaint, if the complainant is absent on the date of hearing, the Magistrate has to follow either of the three courses, namely. 1) Acquit the accused; 2) to adjourn the case and 3) to dispense with the attendance of the complainant and to proceed with the case. In the present case, the Magistrate found that the complainant was avoiding to lead evidence, therefore, relying on the ruling of this Court reported in 1998 Mah LJ 576 : (1998 Cri LJ 3754) the Magistrate proceeded to pass an order acquitting the accused. Once this order has been passed, the remedy of the complainant is to prefer an appeal under Section 378 of the Code of Criminal Procedure after obtaining leave of the Court as required by Section 378(4) of Cr. P.C. This view is consistently taken by this Court. The earliest decision is that of Justice Vaidya, reported in AIR 1959 Bombay 94. This point then, arose in the matter of Dharamaji Gangaram Gholam v. Vithoba Soma Khade, reported in 1992 Mah LJ 118 : (1992 Cri LJ 870). In that case, the accused came to be acquitted in a complaint case by the learned Magistrate for the offences punishable under Sections 417 and 420 read with 34 of the Penal Code, 1860, The point whether an appeal lies against the order of acquittal or whether a revision can be maintained arose for the consideration of the Court. Referring to earlier decision of this Court and to the provisions of Section 401(4) which provides that where an appeal lies under the provisions of the Code of Criminal Procedure, and no appeal is brought, no proceeding by way of a revision shall be entertained - 8 - HC-KAR NC: 2026:KHC:662 CRL.P No. 13177 of 2023 at the instance of the party who could have appealed.Daud, J. came to the conclusion that only an appeal can be preferred against the order of acquittal in consonance with provisions of Section 378, Cr. P.C. In this behalf, reference can also be made to another judgment of this Court, reported in 1999 (3) Mah LJ 397 in the matter of Raja s/o Dr. S.P. Upadhyay v. State or Maharashtra. In taht case also prosecution was for offence punishable under Section. 138 of N.I. Act. In the absence of complainant, the learned Magistrate passed an order of discharge. A revision was filed against that order. It was entertained by the Sessions Judge. The order of Sessions Judge was appealed against. In this context, Patel, J. observed in para 9 of the report that: “It can not be gainsaid that merely because the Magistrate committed an error in recording the order of discharge, that would invest the complainant with a right to prefer a revision and he was justified in doing so. As the order itself is very clear that it has been passed under Section 256(1) of Cr. P.C., 1973, it will necessarily have to be construed an order of acquittal under section 256(1) and not that of discharge. There is one more distinction which will have to be kept in mind and that is, that once an order of acquittal under section 256(1) of the Criminal Procedure Code, 1973 is passed, then the complainant is debarred from filing a second complaint on the same facts so long as the order of acquittal is not set aside. Therefore, the only course open to the complainant was to prefer an appeal in the High Court against the said order of the learned Magistrate by special leave of the Court under section 378(5) of the Criminal Procedure Code, 1973.” 12. It may also be worthwhile to refer to the views of other High Courts on the point. In the matter of Krishna Kumar Gupta v. Mohammed Jaros, reported in 2003 Cri LJ 149, while dealing with this point, Mahmood Ali, J. referred to the submissions made on behalf of appellant in para 4 of the report. Its observed : “He had cited Guest Kleen Williams Ltd. v. Murarilal, 1984 Rajdhani LR 32 (1983 Cri LJ 554), where a Division Bench of this Court held that against an order of dismissal of a complaint under section 256 of the Cr. P.C. only an appeal lies. He also referred to the judgment of Shri M.M.S. Bedi v. Union Territory of - 9 - HC-KAR NC: 2026:KHC:662 CRL.P No. 13177 of 2023 Chandigarh, (1986) 89 Pun LR 687; Vinod Kumar v. State of Punjab, (1999) 4 Rec Cri Refers 469 and a judgment of Himachal High Court in H.P. Agro Industries Corporation Ltd. v. M.P.S. Chawla, (1997) 2 Crimes 591 in support of his argument that the dismissal of the complaint under section 256 of the Cr. P.C. resulted in acquittal of the accused and an appeal and not the revision will be the remedy to challenge it.” This submissions were accepted by the learned Judge. Dealing with these arguments, the learned Judge observed in para 5: “Counsel for respondent initially justified the order of the Additional Sessions Judge impugned in this petition on the ground that it was not in accordance with the law laid down by the Supreme Court in Associated Cement Co. Ltd. v. Keshavanand, (1998) 1 SCC 687 : AIR 1998 SC 596 : (1998 Cr LJ 856) and a judgment of the Division Bench of this Court in Shiv Kumar v. Mond, Saghir, 1997 JCC 149 : (1997 Cri LJ 1264) but finally conceded that technically speaking revision did not lie against the order of dismissal of a complaint under Section 256, Cr. P.C. in view of the consistence view held by the courts that dismissal resulted in acquittal of the accused and against the acquittal only an appeal would be the appropriate legal remedy to challenge it, “In H.P. Agro Industries Corporation Ltd. v. M.P.S. Chawla, reported in 1997 (2) Crimes 591, petition under Section 482 of Cr. P.C. was filed challenging the order of dismissal passed under section 256 of Cr. P.C. After referring to the decisions of the Supreme Court in Bindeshwari Prasad Singh v. Kali Singh, and Maj. Genl. A.S. Gauraya v. S.N. Thakur. Learned Judge observed in para 12 of the report: “There is no denying that the dismissal of the complaint in default under Section 256 of the Code of Criminal Procedure entails the acquittal of the accused. Once an accused has been acquitted of the offence, the law provides a remedy by way of an appeal against the order of acquittal. Once a remedy by way of appeal is available to the petitioner under Section 378(4) of the Code of Criminal Procedure, on the failure of the petitioner to avail such a remedy, this Court is not to exercise the inherent powers for interfering with the impugned order. 13. It can be seen that earlier decisions of this Court and other High Courts have consistently laid - 10 - HC-KAR NC: 2026:KHC:662 CRL.P No. 13177 of 2023 down law that only an appeal lies against order of dismissal of the complaint which amounts to acquittal of the accused and in case of acquittal remedy of revision is not available to the aggrieved party. Not only that under Section 401 of Cr. P.C. there is express bar for entertaining a revision at the instance of the party who could have appealed. 14. Learned Counsel for Resp. No. 2 has made reference to the judgment of this Court in the matter of Mahendra Indermal Borana v. Anil Shankar Joshi reported in 2004 ALL MR (Cri) 1715, to contend that revision can be maintained against the order of acquit tal. In that case, reference is made to the judgment of the Supreme Court in the matter of Major General A.S. Gauraya v. S.N. Thakur, reported in 1986 Cri LJ 1074. In Man. Genl. A.S. Gaurayas case, the Apex Court was considering the controversy whether a subordinate criminal court has any inherent jurisdiction outside the provisions of Cr. P.C. and was also incidently dealing with the scope of Article 141 of the Constitution. After referring to the earlier judgment in Bindeshwari Prasad Singh v. Kali Singh, (1977) 1 SCR 125 : ((1977) 1 SCC 57 : AIR 1977 SC 2432) it is held that the learned Magistrate had absolutely no Jurisdiction to re call the order of dismissing the complaint. The remedy of the respondent was to move the Sessions Judge or the High Court in revision. The point whether an appeal or revision lies against the order of acquittal passed under Section 256(1) Cr. P.C. was not before the Court and was not decided by the Court in this ruling. This judgment there fore is not an authority on the point whether a revision or appeal lies against an order of acquittal passed under Section 256(1) of the Code of Criminal Procedure. Be that, as it may, similar situation arose in the past before this Court in the matter of Dharamji Gangaram v. Vithoba Khade, where, Baud, J. was faced similar dilemma. In that case also, reference was made to the judgment of Sharad Manohar J. in KokilabaiRamchandre Mahajan v. Gangadhar Shivram Mahajan, reported in 1986 (2) Bom CR 289, wherein it was held that the revision against the order of acquittal is maintainable. After referring to the relevant observations and the legal provisions, Daud J., distinguished the judgment on facts and observed in para 5 page 1217 that: “Had his attention been drawn to Badakas is decision, perhaps learned Judge may not have chosen to - 11 - HC-KAR NC: 2026:KHC:662 CRL.P No. 13177 of 2023 express himself in the broad terms he has done. In the present case, we are also faced with the similar situation. However, in view of the judgments of the Apex Court that the long standing precedents are to be followed, and in view of the fact that while deciding the controversy in the matter of Mahendra Indermal Borana v. Anil Shankar Joshi, (supra) the attention of the, Court was not drawn to the earlier decisions of this Court as well as of other High Courts holding that in case of order being passed under Section 256(1), Cr. P.C. acquitting the accused, the only remedy is to file an appeal and not a revision. Therefore, appropriate course is to follow the long standing precedent as the law laid down has stood for a long period of time during which many transactions have taken place on the faith of this interpretation of the Court and large number of parties have modulated their legal relationship based on this settled position of law. 15. In this view of the matter, in accordance with the settled position of law Learned Sessions Judge had no jurisdiction to entertain a revision against an order of acquittal passed under Section 256(1) of Cr. P.C. Therefore, the order passed by the learned Sessions Judge is illegal and non-est. The said order deserves to be quashed and set aside. Thus the petition is allowed. Rule is made absolute in terms of prayer clause (c). At this stage, learned Counsel for Resp. No. 2 submits that in these circumstances, Resp. No. 2 will have to pursue appropriate remedy and whenever any proceeding is initiated, the fact that he was contesting the cause in different courts under reasonable believe that the proceeding instituted by him is maintainable, should be taken into consideration while dealing with the point of limitation. Learned Counsel for the petitioners stipulates that in case such a proceeding is initiated, the point of limitation will not be pressed.” (Emphasis supplied) In the light of the judgment of the Apex Court, the order impugned suffers from jurisdictional error, as if an order of - 12 - HC-KAR NC: 2026:KHC:662 CRL.P No. 13177 of 2023 discharge of the accused on account of the default of the complainant results in dismissal of the case, it amounts to acquittal under Section 256(1) of Cr.P.C. If it is an acquittal under Section 256(1) of Cr.P.C., only an appeal under Section 397 of Cr.P.C. is maintainable and not a revision petition before the Court of Session. In that light, the petition deserves to succeed. The order impugned is thus held unsustainable. 5. For the aforesaid reasons, the following: ORDER (i) Criminal petition is allowed. (ii) The order dated 09.11.2023 passed by the VII Additional District and Sessions Judge, Tumkuru stands quashed. (iii) The respondent is at liberty to prefer an appeal against the order of dismissal of C.C.No.58/2016 dated 14.02.2023, in accordance with law. Sd/- (M.NAGAPRASANNA) JUDGE JY List No.: 1 Sl No.: 2