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2021 (11) TMI 446 - JAMMU & KASHMIR HIGH COURTDishonor of Cheque - only contention that has been raised by the learned counsel for the petitioner is that once an order of dismissal of complaint is made by the Magistrate, the same amounts to acquittal - HELD THAT:- It is clear that if a Magistrate chooses to dismiss a complaint because of non-appearance of the complainant, he has to acquit the accused meaning thereby that acquittal of the accused is a necessary consequence of the dismissal of complaint in default of appearance of the complainant. Once it has been held that the dismissal of complaint of the respondent in default has led to the acquittal of the accused/petitioner, the only remedy available to him was to file an appeal against the said order after seeking leave in terms of Section 417 of J&K Cr.P.C. A revision petition against an order of acquittal, which is appealable, is not maintainable in view of sub-section (5) of Section 439 of J&K Cr.P.C. The order of dismissal of complaint passed by learned Magistrate amounted to acquittal of petitioner herein and the said order could have been challenged only by way of an appeal and not by way of a revision petition. Therefore, the Revisional Court has exercised a jurisdiction which is not vested in it and, in fact, is barred in terms of sub-section (5) of Section 439 of J&K Cr.P.C. The impugned order passed by the Revisional Court is set aside - Petition allowed.
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