Dishonour of cheque-Complainant can not file complaint treating himself as victim

A complainant has
already been given a right under the Code, to file an appeal in case of
acquittal [Section 378(4) of the Code]. Such appeal lies to this Court. The
complainant in a private complaint, who already has a right to file an
appeal under the provisions of Section 378(4) of the Code, cannot, by
claiming to be a 'victim', file an appeal by virtue of the proviso to Section
372 of the Code. Since the complainant already had a right to file an
appeal, as contemplated under Section 378(4) of the Code, such a
complainant could not have filed an appeal claiming to be a 'victim'.
Consequently, the appeal filed by him before the Court of Sessions was
not at all maintainable. 

Criminal Revision Application No. 100 of 2013
Ganesh Bandu Badgujar,
V
 Mangalabai Ashokbhai Patel,

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.


CORAM : ABHAY M. THIPSAY, J.
DATE : 9TH DECEMBER 2013
Citation; 2014 ALLMR(CRI)680

1.
Rule.
By consent, Rule made returnable forthwith.
consent, heard finally.
The applicant is the original accused.
2.
By
He was being

prosecuted on the basis of a complaint filed by the respondent no.1 herein,
alleging commission of an offence punishable under Section 138 of the
Negotiable Instruments Act, 1881. On 8-11-2010, the learned Judicial
Magistrate (First Class), Jalgaon, passed an order acquitting the applicant,
as contemplated under Section 256 of the Code of Criminal Procedure,
1973 [For short, "the Code"]. Against the said order of acquittal, the
respondent no.1 herein i.e. the original complainant filed an appeal in the
Court of Sessions.
This appeal was dealt with and allowed by an
Additional Sessions Judge.
Being aggrieved by the said order passed by the appellate court, the
original accused has approached this Court by filing the present Revision
Application.
3.
Clearly, the appeal filed before the Court of Sessions was not
at all maintainable. It appears that the appeal was filed purportedly under
the proviso to Section 372 of the Code. Thus, the appeal had been filed by
claiming that the original complainant was a victim, as contemplated

(3)
under the proviso to Section 372 of the Code. The proviso to Section 372
was inserted by Section 29 of the Code of Criminal Procedure
[Amendment Act, 2008 (5 of 2009)], with effect from 31-12-2009. The
proviso was inserted with the object of giving an opportunity to the
persons who are affected by the decision of the court, but who had not
been given right to file any appeal under the provisions of the Code, to
challenge such decision by filing an appeal.
The case in question had arisen on a complaint filed by the
4.

respondent no.1. As such, he was the complainant. A complainant has
already been given a right under the Code, to file an appeal in case of
acquittal [Section 378(4) of the Code]. Such appeal lies to this Court. The
complainant in a private complaint, who already has a right to file an
appeal under the provisions of Section 378(4) of the Code, cannot, by
claiming to be a 'victim', file an appeal by virtue of the proviso to Section
372 of the Code. Since the complainant already had a right to file an
appeal, as contemplated under Section 378(4) of the Code, such a
complainant could not have filed an appeal claiming to be a 'victim'.
Consequently, the appeal filed by him before the Court of Sessions was
not at all maintainable. The proceedings before the Court of Sessions
were a nullity. The trial and the order of allowing the appeal is to be
treated as 'non-est'.
5.
Consequently, the Revision Application succeeds.
The order dated 16-4-2013, passed by the Additional Sessions
Judge, Jalgaon, in Criminal Appeal No. 119 of 2010, is quashed and set

(4)
aside.
It is clarified that, this shall not prevent the original complainant
from filing an appeal in accordance with the provisions of Section 378(4)
of the Code, challenging the order of acquittal passed by the Magistrate.
Rule is made absolute in the aforesaid terms.
6.

( ABHAY M. THIPSAY )
JUDGE

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