# Shitala Baksh Singh v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 1200
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-22
- **Case number:** Application U/S 482. No. 8378 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shitala-baksh-singh-v-state-of-u-p-anr-50518
- **Pages:** 10

## Headnote

Criminal Law - Negotiable Instruments
Act, 1881 - Section 138 - Against dismissal
of complaint by Magistrate - Applicant
8 All. Shitala Baksh Singh Vs. State of U.P. & Anr.
1201
instituted complaint, alleged dishonour of
cheque which was issued by opposite
party
no.
2
-
Opposite
party
was
summoned to face trial - Later on,
complaint was dismissed in absence of
complainant u/s 256 Cr.PC - Applicant
contended that said order was passed
without
recording
reasons
for
not
adjourning proceedings in complainant's
absence - Thus, impugned order was
appealable u/s 378 (4) Cr.PC, subject to
all requirements of law as to leave,
limitation etc, therefore, application u/s
482 of Code would not lie against that
order - In the circumstances, preliminary
objection raised by opposite party no. 2
regarding maintainability is upheld. (Para
2 to 6, 9, 18, 20)
Application rejected. (E-14)

List of Cases cited:

## Text

1200 INDIAN LAW REPORTS ALLAHABAD SERIES
to the conclusion, the complaint was filed
by departmental authorities but it seems
that for taking decision, the authorities have
taken four years that is an inordinate delay.
Further it seems that for justifying the
delay, again a notice was served upon the
applicant, though, prima facie, the same is
insufficient to fill up or explain the
inordinate delay.

17. This court has noticed the fact that
there is an exemption clause in Rule 123 of
'the Rules 1945', which clearly says that the
drugs which are specified in the Schedule 'K'
shall be exempted from the provision of
Chapter IV of the Act. So far as the sample
which was taken, admittedly, comes under
the Schedule 'K' of the Rules, 1945' but the
authorities has ignored the provisions of
exemption clause.

18. I have also considered the
contentions of the learned counsel for the
applicant that no reason has been recorded
while passing the order dated 19.07.2022,
whereby the present applicant has been
summoned. From bare perusal of the
impugned order, it transpires that the reasons
has not been recorded and it has only been
mentioned that the Court has looked into the
complaint as well as the record available
before the same.

19. Time and again, the Hon'ble Apex
Court has heldthat in the cases arising out of
complaint case, the trial court while issuing
summons, shall record detailed reasons,
which should apparently show the application
of mind and this duty of Magistrate cannot be
marginalized.

20. The plea has also been taken that
provision of Section 33M of the Act, 1940
clearly provides that any prosecution under
the Chapter IV of the Act, can be instituted
except by an Inspector with a previous
sanction of the authority specified under Sub
Section (4) of Section 33 (g) and while
examining aforesaid, this Court finds that the
compliance of the abovesaid provisions has
not been done by the authorities and the
mandate of due procedure has been violated.

21. In view of the abovesaid
submissions and discussions, there is merit in
this case, consequently, the order dated
19.07.2022 passed in Complaint Case No.
1437 of 2022, is hereby set-aside.

22. Matter is remitted back to the trial
Court concerned to pass a fresh order within
a period of 60 days from the date of this
order, considering the observations made
herein above.

23. The instant application is hereby
allowed.
----------
(2023) 8 ILRA 1200
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.05.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Application U/S 482. No. 8378 of 2023

Shitala Baksh Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Narendra Kumar Singh

Counsel for the Opposite Parties:
G.A., Sri Syed Ahmed Faizan, Ms. Fatima
Anjum

Criminal Law - Negotiable Instruments
Act, 1881 - Section 138 - Against dismissal
of complaint by Magistrate - Applicant
8 All. Shitala Baksh Singh Vs. State of U.P. & Anr.
1201
instituted complaint, alleged dishonour of
cheque which was issued by opposite
party
no.
2
-
Opposite
party
was
summoned to face trial - Later on,
complaint was dismissed in absence of
complainant u/s 256 Cr.PC - Applicant
contended that said order was passed
without
recording
reasons
for
not
adjourning proceedings in complainant's
absence - Thus, impugned order was
appealable u/s 378 (4) Cr.PC, subject to
all requirements of law as to leave,
limitation etc, therefore, application u/s
482 of Code would not lie against that
order - In the circumstances, preliminary
objection raised by opposite party no. 2
regarding maintainability is upheld. (Para
2 to 6, 9, 18, 20)
Application rejected. (E-14)

List of Cases cited:

1. H.P. Agro Industries Corporation Ltd. Vs
M.P.S. Chawla, 1996 SCC OnLine HP 54, (Para
11)

2. Sunil Mishra Vs St. of U.P. & anr., 2015 (90)
ACC 169

3. Ruksar Khan Vs St. of U.P. & ors., 2020 (7)
ADJ 525, (Para 41, 42)

4.
Dinesh
Chander
Sharma
Vs
Deputy
Commissioner Office Employees' Union & anr.,
2020 SCC OnLine HP 1677, (Para 27 to 29, 32,
33, 35)

5. Om Gayatri & Co. & ors. Vs St. of Mah. &
another, 2005 SCC OnLine Bom 1622, (Para 11
to 14)

6. K.L. Venkateswar Rao Vs The St. of A.P. &
Another, 2003 (3) A.P.L.J. 398 (HC)
(Delivered by Hon'ble J.J. Munir, J.)

Heard Mr. Narendra Kumar Singh,
learned Counsel for the applicant, Ms.
Fatima Anjum, Advocate holding brief of
Mr. Syed Ahmed Faizan and Mr. D.K.
Srivastava, learned A.G.A. for the State.

2. This application under Section 482
of the Code of Criminal Procedure, 1973
('Code' for short) is directed against an
order of the Judicial Magistrate, Court No.
5, Farrukhabad dated 10.11.2022 passed in
Complaint Case No 59 of 2022, under
Section 138 of the Negotiable Instruments
Act, 1881, dismissing the complaint under
Section 256 of the Code.

3. A preliminary objection has been
raised by Ms. Fatima Anjum that this
application under Section 482 of the Code
is not maintainable, because the impugned
order has been passed by the Magistrate
under Section 256 of the Code, which
amounts to a judgment of acquittal, the
remedy whereagainst is an appeal under
Section 378(4) of the Code by special leave
of this Court. She submits, therefore, that
this application under Section 482 of the
Code is not maintainable.

4. Shorn of unnecessary detail, the
facts giving rise to this application under
Section 482 of the Code are that the
applicant instituted a complaint in the
Court of the Chief Judicial Magistrate,
Farrukhabad on 15.03.2018, giving rise to
the Complaint Case No. 59 of 2022, under
Section 138 of the Negotiable Instruments
Act, 1881.

5. The complaint was about the
dishonour of a cheque dated 20.01.2018
worth Rs. 2,00,000/-, bearing no. 183239,
issued by the opposite party no. 2, drawn
on the Axis Bank, Hewett Road, Lucknow
dated 20.01.2016. The cheque when
presented by the applicant was allegedly
dishonoured. After service of the necessary
statutory
notice
which
remained
uncomplied with for the period of time
specified by law, the impugned complaint
was instituted.
1202 INDIAN LAW REPORTS ALLAHABAD SERIES

6. The second opposite party was
summoned to stand his trial by the learned
Magistrate vide order dated 04.05.2022.
There is an averment to this effect in
paragraph no. 9 of the affidavit. Later on,
by the order impugned dated 10.11.2022,
the complaint was dismissed in the absence
of the complainant under Section 256 of the
Code.

7. It is urged by learned Counsel for
the second opposite party in support of the
preliminary objection that this petition
under Section 482 of the Code is not
maintainable because an order dismissing a
complaint under Section 256 of the Code is
a judgment of acquittal against which the
remedy of an appeal is envisaged under
Section 378 of the Code.

8. In support of her submissions, Ms.
Fatima
Anjum,
learned
Counsel
for
opposite party no. 2 has placed reliance
upon a decision of the Himachal Pradesh
High Court in H.P. Agro Industries
Corporation Ltd. v. M.P.S. Chawla, 1996
SCC OnLine HP 54. In H.P. Agro
Industries Corporation Ltd. (supra) it has
been held:

11. There is no denying that the
dismissal of the complaint in default under
section 256 of the Criminal Procedure
Code, 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
Criminal Procedure Code, on the failure
of the petitioner to avail of such a
remedy, this court is not to exercise the
inherent powers for interfering with the
impugned order.

9. Mr. Narendra Kumar Singh,
learned Counsel for the applicant in
rebuttal of the preliminary objections has
placed reliance upon a decision of this
Court in Sunil Mishra v. State of U.P. and
another, 2015 (90) ACC 169 to submit
that an application under Section 482 of the
Code is maintainable, where the order
dismissing the complaint under Section
256(1) of the Code is passed without
recording reasons for not adjourning
proceedings in the complainant's absence.

10. Mr. Narendra Kumar Singh,
Advocate has emphasized that the decision
of this Court in Sunil Mishra (supra) is a
binding precedent whereas the Himachal
Pradesh High Court's decision is nothing
more than persuasive.

11. A perusal of the decision of this
Court in Sunil Mishra shows that no doubt
the case was one, where a complaint under
Section 138 of the Negotiable Instruments
Act, 1881 had been dismissed for nonappearance
of
the
complainant
on
19.02.2014 in exercise of powers under
Section 256(1) of the Code and the manner
of exercise of the power to dismiss under
Section 256 of the Code was disapproved
by this Court in an application under
Section 482, which was allowed and the
order dismissing the complaint quashed,
but, this Court is of opinion that the
decision in Sunil Mishra is no precedent.
The reason is that though the point whether
an order under Section 256(1) of the Code
can be assailed in an application under
Section 482 in the face of a clear remedy of
appeal under Section 378(4) of the Code
was involved, it is evident from a reading
of the judgment of Pratyush Kumar, J., that
it was "not perceived by the Court or
present to its mind" to borrow the classical
words employed by Salmond in Salmond
8 All. Shitala Baksh Singh Vs. State of U.P. & Anr.
1203
on Jurisprudence, 12th Edn., p. 153. The
decision of Pratyush Kumar, J. in Sunil
Mishra, so far as the point in hand is
involved, is not a binding precedent and
must be held to pass sub silentio.

12. I had occasion to consider the
principle of sub silentio and that earlier
decisions would not be binding precedent
on account of the principle of sub silentio
in Ruksar Khan v. State of U.P. and
others, 2020 (7) ADJ 525, where is was
held:

41. It must be said, about the
various decisions relied upon by the
learned Counsel for the petitioners, where
after a short statement of facts giving rise
to the cause, directions have been issued,
that these decisions do not carry the force
of precedent. A decision has the value of
precedent, where it lays down a principle
governing
a
point
that
arises
for
consideration in a subsequent decision. A
fortiori a decision that does not enunciate a
principle of law in the context of facts
involved after consideration of arguments
must be regarded not binding on a Court
before
which
the
relevant
point
subsequently arises. The decision is
regarded to pass sub silentio. The principle
of sub silentio is a well acknowledged
principle that relieves a Court of the
obligation
of
precedent,
where
the
decision relied does not indicate a
consideration of the kind. A classical
statement about the law relating to the
principle of sub silentio is to be found in
the decision of the Supreme Court in State
of U.P. and another v. Synthetics and
Chemicals Limited and another, (1991) 4
SCC 139. In State of U.P. v. Synthetics
and Chemicals Ltd. (supra), the principle
is enunciated in the concurring judgment
of R.M. Sahai, J. thus:

''41. Does this principle extend
and apply to a conclusion of law, which
was neither raised nor preceded by any
consideration. In other words can such
conclusions be considered as declaration of
law? Here again the English Courts and
jurists have carved out an exception to the
rule of precedents. It has been explained as
rule of sub-silentio. ''A decision passes subsilentio, in the technical sense that has
come to be attached to that phrase, when
the particular point of law involved in the
decision is not perceived by the Court or
present
to
its
mind.''
(Salmond
on
Jurisprudence 12th Edn., p. 153). In
Lancaster Motor Company (London) Ltd.
v. Bremith Ltd. [(1941) 1 KB 675, 677 :
(1941) 2 All ER 11] the Court did not feel
bound by earlier decision as it was rendered
'without any argument, without reference to
the crucial words of the rule and without
any citation of the authority'. It was
approved by this Court in Municipal
Corporation of Delhi v. Gurnam Kaur.
[(1989) 1 SCC 101] The bench held that,
'precedents
sub-silentio
and
without
argument are of no moment'. The Courts
thus have taken recourse to this principle
for relieving from injustice perpetrated by
unjust precedents. A decision which is not
express and is not founded on reasons nor it
proceeds on consideration of issue cannot
be deemed to be a law declared to have a
binding effect as is contemplated by Article
141. Uniformity and consistency are core
of judicial discipline. But that which
escapes in the judgment without any
occasion is not ratio decidendi. In B.
Shama
Rao
v.
Union
Territory
of
Pondicherry [AIR 1967 SC 1480 : (1967) 2
SCR 650 : 20 STC 215] it was observed, 'it
is trite to say that a decision is binding not
because of its conclusions but in regard to
its ratio and the principles, laid down
therein'. Any declaration or conclusion
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
arrived without application of mind or
preceded without any reason cannot be
deemed to be declaration of law or
authority of a general nature binding as a
precedent.
Restraint
in
dissenting
or
overruling is for sake of stability and
uniformity but rigidity beyond reasonable
limits is inimical to the growth of law.''

42. The principle was again
explained by the Supreme Court in
Divisional
Controller,
KSRTC
v.
Mahadeva Shetty and another, (2003) 7
SCC 197. It was held in Divisional
Controller, KSRTC (supra):

''23. So far as Nagesha case
[(1997) 8 SCC 349] relied upon by the
claimant is concerned, it is only to be noted
that the decision does not indicate the basis
for fixing of the quantum as a lump sum
was fixed by the Court. The decision
ordinarily is a decision on the case before
the Court, while the principle underlying
the decision would be binding as a
precedent in a case which comes up for
decision subsequently. Therefore, while
applying the decision to a later case, the
Court dealing with it should carefully try to
ascertain the principle laid down by the
previous decision. A decision often takes
its colour from the question involved in the
case in which it is rendered. The scope and
authority of a precedent should never be
expanded unnecessarily beyond the needs
of a given situation. The only thing binding
as an authority upon a subsequent Judge is
the principle upon which the case was
decided. Statements which are not part of
the ratio decidendi are distinguished as
obiter dicta and are not authoritative. The
task of finding the principle is fraught with
difficulty as without an investigation into
the facts, it cannot be assumed whether a
similar direction must or ought to be made
as a measure of social justice. Precedents
sub silentio and without argument are of no
moment. Mere casual expressions carry no
weight at all, nor every passing expression
of a Judge, however eminent, can be treated
as an ex cathedra statement having the
weight of authority.'' "

13. The issue whether an order passed
under Section 256 (1) of the Code can be
challenged in an application under Section
482 of the Code, or for that matter, a
revision under Section 401 of the Code fell
for consideration before the Himachal
Pradesh High Court in Dinesh Chander
Sharma v. Deputy Commissioner Office
Employees' Union and another, 2020
SCC OnLine HP 1677. In Dinesh Chander
Sharma (supra) it was held:

27. The appeal against an order of
acquittal lies under Section 378(4) of the
Cr.P.C., to the High Court, by seeking
special leave to appeal from the order of
acquittal. Instead of filing the petition
under Section 378(4) of the Cr.P.C., in the
High Court of HP, the petitioner preferred
to present the revision petition under
Section 397 of the CrPC before Sessions
Court, Una, HP.

28. Learned Additional Sessions
Judge, dismissed the revision petition, by
holding that when the remedy to challenge
the order of dismissal of complaint was by
filing an appeal under Section 401 of the
Cr.P.C., in the High Court, then he had no
jurisdiction to entertain a revision petition
by invoking revisionary jurisdiction under
Section 397 of the Cr.P.C.

378. Appeal in case of acquittal.-

(4) If such an order of acquittal is
passed
in
any
case
instituted
upon
8 All. Shitala Baksh Singh Vs. State of U.P. & Anr.
1205
complaint and the High Court, on an
application made to it by the complainant
in this behalf, grants special leave to appeal
from the order of the acquittal, the
complainant may present such an appeal to
the High Court.

29. An appeal is a continuation of
a trial and is a statutory right to get the
judgment tested by a superior Court, for its
correctness, legality and appreciation of
evidence. An Appeal, being a creature of
statute,
only
exists
where
expressly
provided.

32. In H.P. Financial Corporation
v. Ms. Continental Spinners Ltd., ILR
(2016) 2 HP 442, a single bench of this
Court holds:-

7. Since the case was instituted
on a complaint and the dismissal of the
complaint has the effect of acquittal,
therefore, in view of the provisions of subsection (4) of Section 378 of the Code, the
remedy of the complainant was to make an
application seeking special leave to appeal
against the impugned order and present an
appeal, which course the complaint had not
adopted.

33. In my considered view, this
approach of the Sessions Judge was legally
correct and justified. Therefore, I do not
find any error in the impugned order dated
Oct 17, 2017, passed by learned Sessions
Judge, Una, and affirm it. However, the
order passed by Ld. Judicial Magistrate
does not pass the test of law, but the
remedy to seek its reversal, is not this
petition.

35. The remedy available to the
complainant was by filing an appeal under
Section 378(4) Cr.P.C., by seeking leave of
this Court. Instead, the complainant filed a
Criminal Revision, that too before Sessions
Court. He chose a wrong remedy, and he
has all the right to rectify the mistake by
filing an appeal, as stated above, if he so
feels and desires."

(emphasis by Court)

14. The issue also engaged the
attention of the Bombay High Court in Om
Gayatri & Co. & others v. State of
Maharashtra & another, 2005 SCC
OnLine Bom 1622, where it was observed:

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
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 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
8 All. Shitala Baksh Singh Vs. State of U.P. & Anr.
1207
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 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. .....The point whether an
appeal or revision lies against the order of
acquittal passed under Section 256(1) Cr.
P.C. was not be fore 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
Kokilabai
Ramchandre
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 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
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
only remedy is to file an appeal and not a
revision....."

15. The question that is involved here
also arose before the Andhra Pradesh High
Court in K.L. Venkateswar Rao v. The
State of A.P. & Another, 2003 (3)
A.P.L.J. 398 (HC), in the context of
challenging an order of acquittal under
Section 256 (1) of the Code, where the
limitation to file an appeal under Section
378 (4) of the Code had expired.

16. Apart from the question that was
involved regarding the maintainability of
an application before the Magistrate to
recall his order under Section 256 (1) of the
Code, the other question was formulated by
the Court in the following words :

"(ii) When once the appeal lies to
the High Court against the order of
acquittal with special leave, petition filed
under Sec. 482 Cr. P.C., to set-aside the
dismissal order acquitting the accused can
be entertained even after 4 years 3
months?"

17. The question was answered by the
Court speaking through A. Gopal Reddy, J.
thus:

13. Point No. 2: Learned Senior
Counsel
Sri
C.
Padmanabha
Reddy
contends that if the dismissal order allowed
to stand would result injustice to the
complainant and will yield no remedy and
this court can convert the petition as appeal
and can set-aside the order passed by the
Magistrate dt. 21-8-1997 to meet the ends
of Justice.

14. It is not in dispute that against
any order passed by the Magistrate
acquitting the accused, the complainant can
file an appeal with special leave to file an
appeal from the order of acquittal. Subsection (5) of section 378 clearly mandates
that no such application under sub-section
(4) for grant of special leave to appeal
against
order
of
acquittal
shall
be
entertained by the High Court after expiry
of six months where the complainant is a
public servant and 60 days in every other
case, computed from the date of that order
of acquittal. Since the present petitions
filed by the complainant nearly after 4
years 3 months if entertained and converted
into appeals on acquittal in exercise of
inherent jurisdiction under Sec. 482 Cr.
P.C., the same will result in taking away
the valuable right accrued to the accused.

15. It is fairly well settled that the
main factor which would influence the
court in extending the benefit of Sec. 14 of
the Limitation Act, 1963 to a litigant is
whether the prior proceeding had been
prosecuted with due diligence and 'good
faith'. The expression 'good faith' as used
in Section 14 means 'exercise of due care
and attention'. In the context of Section 14,
the expression 'good faith' qualifies
prosecuting the proceedings in the court
which ultimately found to have no
jurisdiction.

16. In view of the above, the
present criminal petitions filed by the
complainant beyond the period prescribed
for filing the appeals, i.e., nearly after 4
years 3 months, if treated as appeals, a
question may arise his filing of criminal
petitions for restoring the CCs by setting
aside the dismissal order are with due
diligence and 'good faith'. Even if the
answer is in the affirmative, further
question may arise, once the order passed
by the Magistrate is challenged as nullity in
Crl. P. Nos. 821 and 822 of 1999 what
8 All. Prashant Tyagi & Ors. Vs. State of U.P. & Anr.
1209
made the petitioner to wait for nearly 2
years 5 months in challenging the dismissal
order under Sec. 482 Cr. P.C., after his
entering appearance in the above petitions
is not forthcoming. The complainant did
not choose to act promptly to exercise his
right of appeal, thereby abandoned that
right. In such view of the matter, this court
is of the considered view the right accrued
to the accused on extinguishment of
complainant's right cannot be taken away
by converting the criminal petitions into
appeals.

18. The authority, therefore, is preponderant, may be of persuasive, that an
order under Section 256(1) of the Code is
appealable under Section 378 (4) of the
Code, and, therefore, an application under
Section 482 of the Code would not lie
against that order. It has to be challenged
by way of an appeal against acquittal
subject to all requirements of the law as to
leave, limitation et cetera.

19. This Court is of opinion that
where a specific remedy of appeal is
provided by the Code against a particular
kind of order, fair and square, it would be a
most anomalous exercise of the inherent
powers of the Court to permit the litigant to
forsake his statutory remedy envisaged
under the law and fall back upon Section
482 of the Code to seek relief.

20. In the circumstances, the
preliminary objection raised on behalf of
opposite party no. 2 by learned Counsel is
upheld and this application under Section
482 of the Code is rejected on the ground
of maintainability.

21. The applicant will have liberty to
prefer an appeal under Section 378(4) of
the Code, if so advised.
----------
(2023) 8 ILRA 1209
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.04.2023

BEFORE

THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Application U/S 482. No.11738 of 2018

Prashant Tyagi & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Amrendra Nath Rai, Sri Prabhat Kumar,
Sri Sanjay Singh

Counsel for the Opposite Parties:
G.A., Sri Abhinav Gaur, Sri Anoop Trivedi,
Sri Vibhu Rai

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Negotiable Instruments Act 1881
- Section 138, 141 - liability arises from
being in charge of and responsible for the
conduct of business of the company at the
relevant time when the offence was
committed and not on the basis of merely
holding a designation or office in a
company - Liability depends on the role
one plays in the affairs of a Company and
not on designation or status - If the
accused's
documents
are
beyond
suspicion or doubt, relegating them to
trial would be travesty of justice - court
may examine significant materials at the
prima facie stage to promote justice.(Para
-16)

Applicant no.1 resigned from company before
the issuance of a cheque - cheque did not bear
signatures of any of the applicants - applicants
were merely shareholders on the date of
issuance - no active participation in the
company's day-to-day business - complaint does
not specify how the applicants were in-charge