Whether Appeal against acquittal is maintainable before session court in cheque dishonour case?

Complainant   in   a
complaint case filed under Section 138 of the Negotiable Instruments Act
is  not  a  victim  within  the meaning  of  Section  2(wa)  of  the  Criminal
Procedure Code.  As such the appeal filed before the Sessions Court under
proviso to Section 372 of the Criminal Procedure Code against the order
of acquittal in a complaint case for the offence punishable under Section
138  of  the Negotiable  Instruments Act was  totally misconceived.   The
learned Additional Sessions Judge should have returned  the appeal  for
being   presented   before   the   appropriate   Forum.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION NO. 1516 OF 2010

Madhav Shriramji Khadse, Vs   Rajiv Ramrao Ghatol,

CORAM:   M.L. TAHALIYANI, J.

DATED: 21­06­2012

1. Heard Mr. P.S. Wathore, learned Counsel for the applicant, Mr. A.M.

Ghare, learned Counsel  for  non­applicant  No.1  and Mr. C.N. Adgokar,
learned Additional Public Prosecutor for non­applicant No.2.
2. Admit.  Heard finally by consent of learned Counsel for the parties.
3. The   applicant   was   the   original   accused   in   Summary   Criminal
Complaint No.1288/2008 decided by the Judicial Magistrate First Class,
Akola.    The  applicant  was   acquitted  of  the   offence  punishable   under
Section 138 of the Negotiable Instruments Act by order dated 15­02­2010.
The non­applicant No.1/original complainant filed an appeal before the
Sessions   Court,   Akola   under   proviso   to   Section   372   of   the   Criminal
Procedure Code.  The said appeal was admitted by the learned Additional
Sessions Judge, Akola on 06­4­2010 by following order:
“Heard   Admit.   Call   R   &   P,.   Issue   bailable   warrant   of
Rs.15,000/­ against respondent No.1 returnable on (r/o) on
dated 10­05­2010 notice to respondent No.2.”
4. On   receipt   of   notice   from   the   Sessions   Court,   the   applicant
appeared before the Sessions Court and applied for dismissal of appeal by
his application dated 12­07­2010.   The prayer clause of his application
runs as under :
“It   is   therefore   humbly   prayed   that   the   Hon'ble   Court   be
pleased to allow the application and dismiss the appeal for not

obtaining   leave   to   prefer   the   appeal   to   meet   the   ends   of
justice.”
5. The learned Additional Sessions Judge heard both  the sides and
rejected  the application on  the ground  that  the appeal was  filed under
proviso to Section 372 of the Criminal Procedure Code and the provisions
of Section 378 of the Criminal Procedure Code were not applicable to the
appeal admitted by the learned Additional Sessions Judge.  The reasons
given by the learned Additional Sessions Judge could be found at Para 9
of the said order, which are as under :
“It  is  pertinent   to   note   that  present   appeal  has   been filed
against the order of acquittal as per the amended Section 372
of  the Criminal Procedure Code.    I,  therefore, find  that  the
present   appeal   is   perfectly   maintainable   in   view   of   the
amended provision.  Moreover, I also find that no prior leave is
necessary to be obtained by the complainant before preferring
the   appeal.   The   objection   raised   by   the   original
accused/respondent for  the maintainability  of  the  appeal is
thus, devoid of merit and deserve to be rejected. ”
6. The applicant has filed the present application under Section 482
of the Criminal Procedure Code challenging the order dated 06­4­2010 by
which   appeal   was   admitted   and   further   challenging   the   order   dated
16­8 2010 by which the plea of the applicant that leave was needed for
filing appeal was dismissed by the learned Additional Sessions Judge.

7. I   have   heard   learned   Counsel   Mr.   Wathore   for   the   applicant,
learned Counsel Mr. Ghare for non­applicant No.1 and learned Additional
Public   Prosecutor   Mr.   C.N.   Adgokar   for   non­applicant   No.2.     In   my
considered view, considering the two judgments of this Court, first in the
matter   of  M/s   Top   Notch   Infotronix   (I)   Pvt.   Ltd.   .vs.   M/s   Infosoft
Systems & Ors.  reported at 2011 ALL MR (Cri) 2312 and second in the
matter   of  Shantaram   s/o   Laxman   Tande   .vs.   Dipak   s/o   Madhav
Gaikwad reported at 2011 ALL MR (Cri) 3473, no lengthy discussion is
necessary to dispose of the present application.   From the above stated
two   judgments,   it   is   abundantly   clearly   that   the   complainant   in   a
complaint case filed under Section 138 of the Negotiable Instruments Act
is  not  a  victim  within  the meaning  of  Section  2(wa)  of  the  Criminal
Procedure Code.  As such the appeal filed before the Sessions Court under
proviso to Section 372 of the Criminal Procedure Code against the order
of acquittal in a complaint case for the offence punishable under Section
138  of  the Negotiable  Instruments Act was  totally misconceived.   The
learned Additional Sessions Judge should have returned  the appeal  for
being   presented   before   the   appropriate   Forum.     In   view   thereof,   this
application is being disposed of by passing following order.
i) The   orders  dated   06­4­2010   and  16­8­2010  passed in  Criminal
Appeal No.38/2010, by the learned Additional Sessions Judge, Akola, are
set aside. 

ii) The learned Additional  Sessions  Judge is  directed  to  return  the
appeal to non­applicant No.1 for being presented before the appropriate
forum. 
Criminal application stands disposed of in above terms.
       JUDGE

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